HomeMy WebLinkAboutCity of Tamarac Resolution R-2004-063Temp. IReso. # 10367 - March 12, 2004
CITY OF TAMARAC, FLORIDA
RESOLUTION NO. R-2004-jo
A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF
TAMARAC, FLORIDA AUTHORIZING THE ISSUANCE OF
NOT TO EXCEED $10,000,000 IN AGGREGATE PRINCIPAL
AMOUNT OF CITY OF TAMARAC, FLORIDA CAPITAL
IMPROVEMENT REVENUE BONDS, SERIES 2004 FOR THE
PURPOSE OF PAYING THE COSTS OF ACQUIRING,
CONSTRUCTING AND EQUIPPING CERTAIN CAPITAL
IMPROVEMENTS FOR THE CITY'S WATER AND
WASTEWATER UTILITY SYSTEM AND STORMWATER
UTILITY SYSTEM; COVENANTING TO BUDGET AND
APPROPRIATE LEGALLY AVAILABLE NON -AD VALOREM
REVENUES TO PROVIDE FOR THE PAYMENT THEREOF;
MAKING CERTAIN COVENANTS AND AGREEMENTS FOR
THE BENEFIT OF THE OWNERS OF SUCH BONDS;
AUTHORIZING CERTAIN OFFICIALS AND EMPLOYEES OF
THE CITY TO TAKE ALL ACTIONS REQUIRED IN
CONNECTION WITH THE SALE, ISSUANCE AND DELIVERY
OF SUCH BONDS; TAKING CERTAIN OTHER ACTIONS WITH
RESPECT TO SUCH BONDS; PROVIDING FOR CONFLICTS;
PROVIDING FOR SEVERABILITY; AND PROVIDING AN
EFFECTIVE DATE.
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Temp. Reso. # 10367 - March 12, 2004
TABLE OF CONTENTS
Contents Page No.
ARTICLEI GENERAL...............................................................................................................................1
Section1.01 Definitions......................................................................................................................1
Section 1.02 Authority for Resolution..............................................................................................8
Section 1.03 Resolution to Constitute Contract..............................................................................8
Section 1.04 Findings .........................
Section1.05 The Project....................................................................................................................10
ARTICLE II AUTHORIZATION, TERMS, EXECUTION AND REGISTRATION OF BONDS10
Section 2.01 Authorization of Bonds..............................................................................................10
Section 2.02 Description of Bonds..................................................................................................10
Section 2.03 Application of Bond Proceeds...................................................................................11
Section2.04 Execution of Bonds..................................................................................................... I I
Section2.05 Authentication.............................................................................................................12
Section2.06 Temporary Bonds.......................................................................................................12
Section 2.07 Bonds Mutilated, Destroyed, Stolen or Lost...........................................................12
Section2.08 Transfer........................................................................................................................13
Section2.09 Coupon Bonds.............................................................................................................14
Section2.10 Book Entry...................................................................................................................14
Section2.11 Form of Bonds.............................................................................................................16
ARTICLE III REDEMPTION OF BONDS.............................................................................................23
Section 3.01 Privilege of Redemption............................................................................................23
Section 3.02 Selection of Bonds to be Redeemed..........................................................................23
Section 3.03 Notice of Redemption................................................................................................23
Section 3.04 Redemption of Portions of Bonds.............................................................................24
Section 3.05 Payment of Redeemed Bonds...................................................................................24
ARTICLE IV SECURITY, SPECIAL FUNDS AND APPLICATION THEREOF .............................24
Section 4.01 Bonds not to be Indebtedness of Issuer...................................................................24
Section 4.02 Bonds Secured by Pledge of Pledged Funds...........................................................25
Section 4.03 Construction Fund......................................................................................................26
Section 4.04 Funds and Accounts...................................................................................................26
Section4.05 Flow of Funds..............................................................................................................26
Section4.06 Investments..................................................................................................................28
Section 4.07 Separate Accounts.......................................................................................................29
ARTICLE V OTHER OBLIGATIONS AND COVENANTS OF ISSUER..........................................29
Section 5.01 Special Covenants and Financial Ratios..................................................................29
Section5.02 Books and Records......................................................................................................30
Section5.03 Annual Audit...............................................................................................................31
Section5.04 No Impairment............................................................................................................31
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Temp. Reso. # 10367 - March 12, 2004
Section 5.05
Federal Income Tax Covenants.................................................................................31
ARTICLE VI DEFAULTS AND REMEDIES.........................................................................................33
Section 6.01
Events of Default.........................................................................................................33
Section6.02
Remedies......................................................................................................................33
Section 6.03
Directions to Trustee as to Remedial Proceedings.................................................34
Section 6.04
Remedies Cumulative................................................................................................34
Section 6.05
Waiver of Default........................................................................................................34
Section 6.06
Application of Moneys After Default......................................................................34
ARTICLE VII
SUPPLEMENTAL RESOLUTIONS..............................................................................35
Section 7.01
Supplemental Resolutions without Bondholders' Consent..................................35
Section 7.02
Supplemental Resolutions with Bondholders' Consent........................................36
Section 7.03
Supplemental Resolutions with Insurer's Consent in lieu of Bondholders'
Consent.........................................................................................................................37
ARTICLE VIII MISCELLANEOUS........................................................................................................38
Section8.01
Defeasance...................................................................................................................38
Section 8.02
Insurer Provisions.......................................................................................................39
Section 8.03
Claims Upon the Financial Guaranty Insurance Policy and
Reserve Account
SuretyBond.................................................................................................................41
Section 8.04
Preliminary Official Statement..................................................................................43
Section8.05
Sale of Bonds................................................................................................................44
Section 8.06
General Authority.......................................................................................................44
Section 8.07
No Third Party Beneficiaries.....................................................................................44
Section 8.08
No Personal Liability..................................................................................................44
Section 8.09
Severability of Invalid Provisions.............................................................................44
Section 8.10
Repeal of Inconsistent Resolutions...........................................................................45
Section 8.11
Effective Date...............................................................................................................46
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EXHIBIT A THE PROJECT DESCRIPTION
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Temp. Reso. # 10367 - March 12, 2004
BE IT RESOLVED BY THE CITY COMMISSION OF CITY OF TAMARAC, FLORIDA AS
FOLLOWS:
ARTICLE I
GENERAL
Section 1.01 Definitions. When used in this Resolution, the following terms shall have
the following meanings, unless the context clearly otherwise requires:
"Act" shall mean the Constitution of the State of Florida, Chapter 1.66, Florida Statutes,
as amended, the municipal charter of the Issuer, and other applicable provisions of law.
"Ambac Assurance" shall mean Ambac Assurance Corporation, a Wisconsin -domiciled
stock insurance company.
"Amortization Installment" shall mean an amount designated as such by Supplemental
Resolution of the Issuer and established with respect to any Term Bonds.
"Annual Debt Service" shall mean, with respect to any Bond Year, the aggregate amount
of (1) all interest required to be paid on the Outstanding Bonds during such Bond Year, except
to the extent that such interest is to be paid from deposits in the Construction Fund or the
Interest Account made from Bond proceeds, (2) all principal of Outstanding Serial Bonds
maturing in such Bond Year, and (3) all Amortization Installments herein designated with
respect to such Bond Year.
"Authorized Issuer Officer" shall mean any person authorized by this Resolution or
Supplemental Resolution of the Issuer to perform such act or sign such document.
"Bond Amortization Account" shall mean the separate account in the Debt Service Fund
established pursuant to Section 4.04 hereof.
"Bond Counsel" shall mean any attorney at law or firm of attorneys, of nationally
recognized standing in matters pertaining to the exclusion from gross income for federal.
income tax purposes of interest on obligations issued by states and political subdivisions, and
duly admitted to practice law before the highest court of any state of the United States of
America.
"Bond Year" shall mean the period commencing on October 2 of each year and
continuing through the next succeeding October 1.
"Bondholder" or "Holder" or "holder" or any similar term, when used with reference to
a Bond or Bonds, shall mean any person who shall be the registered owner of any Outstanding
Bond or Bonds as provided in the registration books of the Issuer.
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"Bonds" shall mean the City of Tamarac, Florida Capital Improvement Revenue Bonds,
Series 2004 issued pursuant to this Resolution.
"City Attorney" shall mean the City Attorney or any Assistant City Attorney of the
Issuer, or such other person as may be duly authorized by the Issuer to act on his or her behalf.
"City Clerk" shall mean the City Clerk of the Issuer, or any deputy City Clerk of the
Issuer, or such other person as may be duly authorized by the Issuer to act on his or her behalf.
"City Commission" shall mean the City Commission of the Issuer or the board or body
succeeding to its principal functions.
"City Manager" shall mean the City Manager of the Issuer, or in his or her absence, such
other person as may be duly authorized by the Issuer to act on his or her behalf.
"Code" shall mean the Internal Revenue Code of 1986, as amended, and the regulations
and rules thereunder in effector proposed.
"Construction Fund" shall mean the City of Tamarac Capital Improvement Revenue
Bonds Series 2004 Construction Fund established pursuant to Section 4.03 hereof.
"Cost" when used in connection with a Project, shall mean (1) the Issuer's cost of
physical construction; (2) costs of acquisition by or for the Issuer of such Project; (3) costs of land
and interests therein and the costs of the Issuer incidental to such acquisition; (4) the cost of any
indemnity and surety bonds and premiums for insurance during construction; (5) all interest
due to be paid on the Bonds and other obligations relating to the Project during the construction
period of such Project and for a reasonable period thereafter; (6) engineering, legal and other
consultant fees and expenses; (7) costs and expenses incidental to the issuance of the Bonds for
up to one year, including legal and financial advisory fees and expenses and the fees and
expenses of any auditors, Paying Agent, Registrar or depository; (8) payments, when due
(whether at the maturity of principal or the due date of interest or upon redemption) on any
indebtedness of the Issuer (other than the Bonds) incurred for such Project; (9) costs of
machinery or equipment required by the Issuer for the commencement of operation of such
Project; or (10) any other costs properly attributable to such construction, acquisition, or
equipping, as determined by generally accepted accounting principles and shall include
reimbursement to the Issuer for any such items of Cost heretofore paid by the Issuer. Any
Supplemental Resolution may provide for additional items to be included in the aforesaid
Costs.
"Costs of Essential Services" shall mean the cost of services and programs which are for
essential public purposes affecting the health, welfare and safety of the inhabitants of the Issuer
or which are legally mandated by applicable law.
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"Debt Service Fund" shall mean the City of Tamarac Capital Improvement Revenue
Bonds Series 2004 Debt Service Fund established pursuant to Section 4.04 hereof.
"Director of Finance" shall mean to Director of Finance of the Issuer, or such other
person as may be duly authorized by the Issuer to act on his or her behalf.
"Federal Securities" shall mean those obligations described in clauses (1) and (2) of the
definition of "Permitted Investments", provided that such obligations must provide for timely
payment of principal and interest and may not be callable or prepayable prior to the maturity or
earlier redemption of the defeased Bonds. "Federal Securities" shall not include securities that
do not have a fixed par value and/or whose terms do not promise a fixed dollar amount at
maturity or call date.
"Financial Advisor" shall mean Kirkpatrick Pettis Smith Polian, Inc. or such other
financial advisor as may be duly appointed by the Issuer.
"Financial Guaranty Insurance Policy" shall mean to financial guaranty insurance
policy issued by the Insurer insuring the payment when due of the principal of and interest on
the Bonds as provided therein.
"Fiscal Year" shall mean the period commencing on October 1 of each year and
continuing through the next succeeding September 30, or such other period as may be
prescribed by law.
"Insurer" shall mean Ambac Assurance as the issuer of the Financial Guaranty
Insurance Policy, or any successor corporation that assumes the obligations of the issuer of such
Financial. Guaranty Insurance Policy. All references in this Resolution to the Insurer shall be of
no force and effect at such time as there are no Bonds Outstanding with respect to which the
Insurer has issued the Financial Guaranty Insurance Policy.
"Interest Account" shall mean the separate account in the Debt Service Fund established
pursuant to Section 4.04 hereof.
"Interest Date" shall be such date or dates for the payment of interest on the Bonds as
shall be provided by Supplemental. Resolution.
"Issuer" or "City" shall mean City of Tamarac, Florida, a body politic and corporate,
organized and existing under the laws of the State of Florida, including the Act.
"Maximum Annual Covenant Debt Service" shall mean the maximum annual debt
service on debt and obligations secured by a covenant to budget and appropriate Pledgable
Non -Ad Valorem Revenues for the payment thereof, or that are unsecured and expected by the
Issuer to be paid from Pledgable Non -Ad Valorem Revenues.
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"Maximum Annual Debt Service" shall mean the largest amount of Annual Debt Service
for any Bond Year in which Bonds shall be Outstanding, excluding all Bond Years which shall
have ended prior to the Bond Year in which Maximum Annual Debt Service shall be computed.
"Mayor" shall mean the Mayor of the Issuer, or in his or her absence, the Vice Mayor of
the Issuer, or such other person as may be duly authorized by the Issuer to act on his or her
behalf.
"Non -Ad Valorem Revenues" shall mean all legally available non -ad valorem revenues
of the Issuer (excluding revenues of any enterprise fund of the Issuer), which are legally
available to make the payments required by this Resolution, but only after provision has been
made by the Issuer for payment of the Cost of Essential Services.
"Non -Enterprise Fund Revenues" shall mean all available revenues and receipts of the
Issuer (excluding revenues of any enterprise fund of the Issuer), which are legally available for
the payment of Costs of Essential Services.
"Outstanding" when used with reference to Bonds and as of any particular date, shall
describe all Bonds theretofore and thereupon being authenticated and delivered except, (1) any
Bond in lieu of which another Bond or other Bonds have been issued under an agreement to
replace lost, mutilated or destroyed Bonds, (2) any Bond surrendered by the Holder thereof in
exchange for another Bond or other Bonds under Sections 2.06 and 2.08 hereof, and (3) Bonds
canceled after purchase in the open market or because of payment at or redemption prior to
maturity, and (4) Bonds deemed paid in accordance with Section 8.01 hereof.
"Paying Agent" shall mean any paying agent for Bonds appointed by or pursuant to a
Supplemental Resolution and its successors or assigns, and any other Person which may at any
time be substituted in its place pursuant to this Resolution.
"Permitted Investments" shall mean any of the following if and to the extent the same
are legal for investment under the laws of the State and the investment policy of the Issuer:
(1) Cash (insured at all times by the Federal Deposit Insurance Corporation);
(2) Obligations of, or obligations guaranteed as to principal and interest by,
the United States of America or any agency or instrumentality thereof, when such
obligations are backed by the full faith and credit of the United States of America,
including.
• U.S. Treasury obligations (including State and Local Government Series)
a All direct or fully guaranteed obligations
• Farmers Horne Administration obligations
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• General Services Administration obligations
• Guaranteed Title XI financing
• Government National Mortgage Association (GNMA) obligations
(3) Obligations of any of the following federal agencies which obligations
represent the full faith and credit of the United States of America, including:
• Export -Import Bank
• Rural Economic Community Development Administration
• U.S. Maritime Administration
• Small Business Administration
• U.S. Department of Housing & Urban Development (PHAs)
• Federal Housing Administration
• Federal Financing Bank
(4) Direct obligations of any of the following federal agencies which
obligations are not fully guaranteed by the full faith and credit of the United States of
America:
• Senior debt obligations issued by the Federal National Mortgage Association
(FNMA) or Federal Home Loan Mortgage Corporation (FHLMC)
• Obligations of this Resolution Funding Corporation (REFCORP)
• Senior debt obligations of the Federal Home Loan Bank System
• Senior debt obligations of other government sponsored agencies approved by
the Insurer
(5) U.S. dollar denominated deposit accounts, federal funds and bankers'
acceptances with domestic commercial banks which have a rating on their short term
certificates of deposit on the date of purchase of "P-1" by Moody's and "A-V or "A-7+"
by S&P and maturing not more than 360 calendar days after the date of purchase.
(Ratings on holding companies are not considered as the rating on the bank);
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(6) Commercial paper which is rated at the time of purchase in the single
highest classification, "PA" by Moody's and "A-1+" by S&P and which matures not
more than 270 calendar days after the date of purchase;
(7) Investments in a money market fund rated "AAAm" or "AAAm-g" or
better by S&P;
(8) Pre -refunded Municipal Obligations defined as follows: any bonds or
other obligations of any state of the United States of America or of any agency,
instrumentality or local government unit of any such state which are not callable at the
option of the obligor prior to maturity or as to which irrevocable instructions have been
given by the obligor to call on the date specified in the notice; and
(A) which are rated, based on an irrevocable escrow account or fund
(the "escrow"), in the highest rating category of Moody's or S&P or any
successors thereto; or
(B) (i) which are fully secured as to principal and interest and
redemption premium, if any, by an escrow consisting only of cash or obligations
described in paragraph A(2) above, which escrow may be applied only to the
payment of such principal of and interest and redemption premium, if any, on
such bonds or other obligations on the maturity date or dates thereof or the
specified redemption date or dates pursuant to such irrevocable instructions, as
appropriate, and (ii) which escrow is sufficient, as verified by a nationally
recognized independent certified public accountant, to pay principal of and
interest and redemption premium, if any, on the bonds or other obligations
describe din this paragraph on the maturity date or dates specified in the
irrevocable instructions referred to above, as appropriate;
(9) Municipal Obligations rated "Aaa/AAA" or general obligations of States with a
rating of "A2/A" or higher by both Moody's and S&P.
(10) Investment Agreements approved in writing by the Insurer (supported by
appropriate opinions of counsel); and
(11) Other forms of investments (including repurchase agreements) approved in
writing by the Insurer.
"Person" shall mean an individual, a corporation, a partnership, an association, a joint
stock company, a trust, any unincorporated organization or governmental entity.
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"Pledgable Non -Ad Valorem Revenues" shall mean all legally available non -ad valorem
revenues of the Issuer (excluding revenues of any enterprise fund of the Issuer), which are
legally available to make the payments required by this Resolution.
"Pledged Funds" shall mean (1) Non -Ad Valorem Revenues budgeted and appropriated
by the Issuer in accordance with Section 4.02 hereof and deposited into the Debt Service Fund,
and (2) until applied in accordance with the provisions of this Resolution, all moneys, including
the investments thereof, in the funds and accounts established hereunder, with the exception of
the Rebate Fund.
"Principal Account" shall mean the separate account in the Debt Service Fund
established pursuant to Section 4.04 hereof.
"Project" shall mean the capital improvements to the Issuer's water and wastewater
utility system and stormwater utility system described in Exhibit A, including, without
limitation, all property rights, appurtenances, easements, franchises and equipment relating
thereto and deemed necessary or convenient for the acquisition, construction, and equipping
thereof.
"Rebate Amount" means the excess of the future value, as of a computation date, of all
receipts on nonpurpose investments (as defined in Section 1.148-1(b) of the Income Tax
Regulations) over the future value, as of that date, of all payments on nonpurpose investments,
all as provided by regulations under the Code implementing Section 148 thereof.
"Rebate Fund" shall mean the City of Tamarac Capital Improvement Revenue Bonds
Series 2004 Rebate Fund established pursuant to Section 5.05 hereof.
"Redemption Price" shall mean, with respect to any Bond or portion thereof, the
principal amount or portion thereof, plus the applicable premium, if any, payable upon
redemption thereof pursuant to such Bond or this Resolution.
"Registrar" shall mean any registrar for the Bonds appointed by or pursuant to a
Supplemental Resolution and its successors and assigns, and any other Person which may at
any time be substituted in its place pursuant to Supplemental Resolution.
"Reserve Account" shall mean the separate account in the Debt Service Fund established
pursuant to Section 4.04 hereof.
"Reserve Account Surety Bond" shall mean any surety bond, irrevocable letter of credit,
guaranty or insurance policy, in lieu of a cash deposit, that satisfies the Reserve Account
Requirement following the issuance of the Bonds; and shall initially mean the surety bond
issued by Ambac Assurance guarantying payments into the Reserve Account with respect to
the Bonds as provided therein and subject to the limitations set forth therein.
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"Reserve Account Requirement" shall mean an amount equal to the lesser of (1)
Maximum Annual Debt Service for all Outstanding Bonds, (2) 125%, of the average annual debt
service for all Outstanding Bonds, or (3) the maximum amount allowed under the Code to be
funded with proceeds of the Bonds without adversely affecting the exclusion of interest on the
Outstanding Bonds, and without yield restriction.
"Resolution" shall mean this Resolution, as the same may from time to time be
amended, modified or supplemented by Supplemental Resolution.
"Serial Bonds" shall mean all of the Bonds other than the Term Bonds.
"State" shall mean the State of Florida.
"Supplemental Resolution" shall mean any resolution of the Issuer amending or
supplementing this Resolution adopted and becoming effective in accordance with the terms of
Sections 7.01, 7.02 and 7.03 hereof.
"Term Bonds" shall mean those Bonds which shall be designated as Term Bonds hereby
or by Supplemental Resolution of the Issuer and which are subject to mandatory redemption by
Amortization Installments.
The terms "herein," "hereunder," "hereby," "hereto," "hereof" and any similar terms,
shall refer to this Resolution; the term heretofore shall mean before the date of adoption of this
Resolution; and the term "hereafter" shall mean after the date of adoption of this Resolution.
Words importing the masculine gender include every other gender.
Words importing the singular number include the plural number, and vice versa.
Section 1.02 Authority for Resolution. This Resolution is adopted pursuant to the
provisions of the Act.
Section 1.03 Resolution to Constitute Contract. In consideration of the purchase and
acceptance of any or all of the Bonds by those who shall hold the same from time to time, the
Provisions of this Resolution shall be a part of the contract of the Issuer with the Owners of the
Bonds and shall be deemed to be and shall constitute a contract between the Issuer and the
Owners from time to time of the Bonds. The pledge made in this Resolution and the provisions,
covenants and agreements herein set forth to be performed by or on behalf of the Issuer shall be
for the equal benefit, protection and security of the Owners of any and all of said Bonds and the
Insurer. All of the Bonds, regardless of the time or times of their issuance or maturity, shall be
of equal rank without preference, priority or distinction of any of the Bonds over any other
thereof except as expressly provided in or pursuant to this Resolution.
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Section 1.04 Find�in s. It is hereby ascertained, determined and declared:
(1) That the Issuer deems it necessary, desirable and in the best interests of the
Issuer and its citizens and to serve a paramount public purpose that the Project be acquired,
constructed and equipped.
(2) That the Project shall be financed with the proceeds of the Bonds, together with
certain other legally available funds of the Issuer, if any.
(3) That in order to preserve and protect the public health, safety and welfare of the
inhabitants of the Issuer, it is necessary and desirable to acquire, construct and equip the
Project.
(4) That prior to the issuance of the Bonds, the Issuer has not otherwise secured any
other indebtedness of the Issuer with covenants to budget and appropriate Non Ad -Valorem
Revenues.
(5) That the estimated Pledged Funds will be sufficient to pay the principal of and
interest on the Bonds, as the same become due, and all other payments provided for in this
Resolution.
(6) That the principal of and .interest on the Bonds and all other payments provided
for in this Resolution will be paid solely from the Pledged Funds; and the ad valorem taxing
power of the Issuer will never be necessary or authorized to pay the principal of and interest on
the Bonds and, except as otherwise provided herein, the Bonds shall not constitute a lien upon
any property of the Issuer.
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Temp. Reso. # 10367 - March 12, 2004
Section 1.05 The Project. The Issuer does hereby authorize the acquisition,
construction and equipping of the Project.
ARTICLE II
AUTHORIZATION, TERMS, EXECUTION
AND REGISTRATION OF BONDS
Section 2.01 Authorization of Bonds. This Resolution authorizes an issue of Bonds of
the Issuer to be designated as "City of Tamarac, Florida, Capital Improvement Revenue Bonds,
Series 2004" in an aggregate principal amount of not to exceed $10,000,000 for the purpose of
financing the acquisition, construction and equipping of the Project, paying the premium
associated with the issuance of the Insurance Policy, making a deposit into the Reserve Account
in the amount of the Reserve Account Requirement, or purchasing a Reserve Account Surety
Bond in lieu of such a deposit, and paying certain costs of issuance incurred with respect
thereto; provided the Issuer may change such Series designation in the event that the Bonds are
not issued in calendar year 2004.
The Bonds may, if and when authorized by the Issuer pursuant to this Resolution, be
issued with such further appropriate particular designations added to or incorporated in such
title for the Bonds as the Issuer may determine.
The Bonds shall bear interest at such rate or rates not exceeding the maximum rate
permitted by law; and shall be payable in lawful money of the United States of America on such
dates; all as determined hereunder or by Supplemental Resolution of the Issuer.
The Bonds shall be issued in denominations of $5,000 or integral multiples thereof, in
such form, whether coupon or registered; shall be dated such date; shall bear such numbers;
shall be payable at such place or places; shall contain such redemption provisions; shall have
such Paying Agent and Registrar; and shall mature in such years and amounts; all as
determined hereunder or by Supplemental Resolution of the Issuer.
Section 2.02 Description of Bonds. The Bonds shall be issued as fully registered
Bonds; shall be numbered consecutively from one upward in order of maturity preceded by the
letter "R"; shall bear interest at a rate or rates not exceeding the maximum rate allowed by
Florida law, payable in such manner and on such dates; shall consist of such amounts of Serial
Bonds and Term Bonds; maturing in such amounts or installments and in such years; shall be
payable in such place or places; shall have such Paying Agent and Registrar; and shall contain
such redemption provisions; all as the Issuer shall provide hereafter by Supplemental
Resolution.
The principal of or Redemption Price, if applicable, on the Bonds are payable upon
presentation and surrender of the Bonds at the designated office of the Paying Agent. Interest
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Temp. Reso. # 10367 - March 12, 2004
payable on any such Bond on any Interest Date will be paid by check or draft of the Paying
Agent to the Holder in whose name such Bond shall be registered at the close of business on the
date which shall be the fifteenth day (whether or not a business day) of the calendar month next
preceding such Interest Date, or, unless otherwise provided by Supplemental Resolution, at the
option of the Paying Agent, and at the request and expense of such Holder, by bank wire
transfer for the account of such Holder. In the event the interest payable on any such Bond is
not punctually paid or duly provided for by the Issuer on such Interest Date, such defaulted
interest will be paid to the Holder in whose name such Bond shall be registered at the close of
business on a special record date for the payment of such defaulted interest as established by
notice to such Holder, not less than ten days preceding such special record date. All payments
of principal of or Redemption Price, if applicable, and interest on the Bonds shall be payable in
any coin or currency of the United States of America which at the time of payment is legal
tender for the payment of public and private debts.
Section 2.03 _Application of Bond Proceeds. Except as otherwise provided by
Supplemental Resolution, the proceeds derived from the sale of the Bonds, including accrued
interest and premium, if any, together with legally available funds of the Issuer, if any, shall,
simultaneously with the delivery of the Bonds to the purchaser or purchasers thereof, be
applied by the Issuer as follows:
(1) Accrued interest, if any, shall be deposited in the Interest Account and shall be
used only for the purpose of paying the interest which shall thereafter become due on the
Bonds.
(2) A sufficient amount of proceeds of the Bonds shall be deposited in the Reserve
Account which, together with any moneys and securities on deposit therein and any Reserve
Account Surety Bond obtained in accordance with Section 4.05 hereof, shall equal the Reserve
Account Requirement.
(3) The balance of the proceeds of the Bonds shall be deposited in the Construction
Fund to be used to pay Costs of the Project, including but not limited to costs of issuance of the
Bonds, and any capitalized interest related thereto.
Section 2.04 Execution of Bonds. The Bonds shall be signed by, or bear the facsimile
signature of the Mayor and the City Manager, shall be attested by or bear the facsimile
signature of the City Clerk and shall be approved as to form by the manual or facsimile
signature of the City Attorney. The official seal of the Issuer shall be imprinted on each Bond.
In case any one or more of the officers who shall have signed or sealed any of the Bonds or
whose facsimile signature shall appear thereon shall cease to be such officer of the Issuer before
the Bonds so signed and sealed have been actually sold and delivered, such Bonds may
nevertheless be sold and delivered as herein provided and may be issued as if the person who
signed or sealed such Bonds had not ceased to hold such office. Any Bond may be signed and
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Temp. Reso. # 10367 - March 12, 2004
sealed on behalf of the Issuer by such person who at the actual time of the execution of such
Bond shall hold the proper office of the Issuer, although, at the date of such Bond, such person
may not have held such office or may not have been so authorized. The Issuer may adopt and
use for such purposes the facsimile signatures of any such persons who shall have held such
offices at any time after the date of the adoption of this Resolution, notwithstanding that either
or both shall have ceased to hold such office at the time the Bonds shall be actually sold and
delivered.
Section 2.05 Authentication. No Bond shall be secured hereunder or be entitled to the
benefit hereof or shall be valid or obligatory for any purpose unless there shall be manually
endorsed on such Bond a certificate of authentication by the Registrar or such other entity as
may be approved by the Issuer for such purpose. Such certificate on any Bond shall be
conclusive evidence that such Bond has been duly authenticated and delivered under this
Resolution. The form of such certificate shall be substantially in the form provided in Section
2.11 hereof.
Section 2.06 Temporary Bonds. Until the definitive Bonds are prepared, the Issuer
may execute, in the same manner as is provided in Section 2.04 hereof, and deliver, upon
authentication by the Registrar pursuant to Section 2.05 hereof, in lieu of definitive Bonds, but
subject to the same provisions, limitations and conditions as the definitive Bonds, except as to
the denominations thereof, one or more temporary Bonds substantially of the tenor of the
definitive Bonds in lieu of which such temporary Bond or Bonds are issued, in denominations
authorized by the Issuer by Supplemental Resolution, and with such omissions, insertions and
variations as may be appropriate to temporary Bonds. The Issuer, at its own expense, shall
prepare and execute definitive Bonds, which shall be authenticated by the Registrar. Upon the
surrender of such temporary Bonds for exchange, the Registrar, without charge to the Holder
thereof, shall deliver in exchange therefor definitive Bonds, of the same aggregate principal
amount and maturity as the temporary Bonds surrendered. Until so exchanged, the temporary
Bonds shall in all respects be entitled to the same benefits and security as definitive Bonds
issued pursuant to this Resolution. All temporary Bonds surrendered in exchange for another
temporary Bond or Bonds or for a definitive Bond or Bonds shall be forthwith canceled by the
Registrar.
Section 2.07 Bonds Mutilated Destroyed, Stolen or Lost. In case any Bond shall
become mutilated, or be destroyed, stolen or lost, the Issuer may, in its discretion, issue and
deliver, and the Registrar shall authenticate, a new Bond of like tenor as the Bond so mutilated,
destroyed, stolen or lost, in exchange and substitution for such mutilated Bond upon surrender
and cancellation of such mutilated Bond or in lieu of and substitution for the Bond destroyed,
stolen or lost, and upon the Holder furnishing the Issuer and the Registrar proof of such
Holder's ownership thereof and satisfactory indemnity and complying with such other
reasonable regulations and conditions as the Issuer or the Registrar may prescribe and paying
such expenses as the Issuer and the Registrar may incur. All Bonds so surrendered or otherwise
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Temp. Reso, # 10367 - March 12, 2004
substituted shall be canceled by the Registrar. If any of the Bonds shall have matured or be
about to mature, instead of issuing a substitute Bond, the Issuer may pay the same or cause the
Bond to be paid, upon being indemnified as aforesaid, and if such Bonds be lost, stolen or
destroyed, without surrender thereof.
Any such duplicate Bonds issued pursuant to this Section 2.07 shall constitute original,
additional contractual obligations on the part of the Issuer whether or not the lost, stolen or
destroyed Bond be at any time found by anyone, and such duplicate Bond shall be entitled to
equal and proportionate benefits and rights as to lien on the Pledged Funds to the same extent
as all other Bonds issued hereunder.
Section 2.08 Transfer. Bonds, upon surrender thereof at the office of the Registrar
with a written instrument of transfer satisfactory to the Registrar, duly executed by the Holder
thereof or such Holder's attorney duly authorized in writing, may, at the option of the Holder
thereof, be exchanged for an equal aggregate principal amount of registered Bonds of the same
maturity of any other authorized denominations.
The Bonds issued under this Resolution shall be and have all the qualities and incidents
of negotiable instruments under the commercial laws and the Uniform Commercial Code of the
State, subject to the provisions for registration and transfer contained in this Resolution and in
the Bonds. So long as any of the Bonds shall remain Outstanding, the Issuer shall maintain and
keep, at the office of the Registrar, books for the registration and transfer of the Bonds.
Each Bond shall be transferable only upon the books of the Issuer, at the office of the
Registrar, under such reasonable regulations as the Issuer may prescribe, by the Holder thereof
in person or by such Holder's attorney duly authorized in writing upon surrender thereof
together with a written instrument of transfer satisfactory to the Registrar duly executed and
guaranteed by the Holder or such Holder's duly authorized attorney. Upon the transfer of any
such Bond, the Issuer shall issue, and cause to be authenticated, in the name of the transferee a
new Bond or Bonds of the same aggregate principal amount and Series and maturity as the
surrendered Bond. The Issuer, the Registrar and any Paying Agent or fiduciary of the Issuer
may deem and treat the Person in whose name any Outstanding Bond shall be registered upon
the books of the Issuer as the absolute owner of such Bond, whether such Bond shall be overdue
or not, for the purpose of receiving payment of, or on account of, the principal or Redemption
Price, if applicable, and interest on such Bond and for all other purposes, and all such payments
so made to any such Holder or upon such Holder's order shall be valid and effectual to satisfy
and discharge the liability upon such Bond to the extent of the sum or sums so paid and neither
the Issuer nor the Registrar nor any Paying Agent or other fiduciary of the Issuer shall be
affected by any notice to the contrary.
The Registrar, in any case where it is not also the Paying Agent in respect to the Bonds,
forthwith (A) following the fifteenth day prior to an Interest Date; (B) following the fifteenth
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Temp. Reso. # 10367 - March 12, 2004
day next preceding the date of first mailing of notice of redemption of any Bonds; and (C) at any
other time as reasonably requested by the Paying Agent, shall certify and furnish to such
Paying Agent the names, addresses and holdings of Bondholders and any other relevant
information reflected in the registration books. Any Paying Agent of any fully registered Bond
shall effect payment of interest on such Bonds by mailing a check or draft to the Holder entitled
thereto or may, in lieu thereof, upon the request and at the expense of such Holder, transmit
such payment by bank wire transfer for the account of such Holder.
In all cases in which the privilege of exchanging Bonds or transferring Bonds is
exercised, the Issuer shall execute and the Registrar shall authenticate and deliver such Bonds in
accordance with the provisions of this Resolution. Execution of Bonds in the same manner as is
provided in Section 2.04 hereof for purposes of exchanging, replacing or transferring Bonds
may occur at the time of the original delivery of the Bonds. All Bonds surrendered in any such
exchanges or transfers shall be held by the Registrar in safekeeping until directed by the Issuer
to be canceled by the Registrar. For every such exchange or transfer of Bonds, the Issuer or the
Registrar may make a charge sufficient to reimburse it for any tax, fee, expense or other
governmental charge required to be paid with respect to such exchange or transfer. The Issuer
and the Registrar shall not be obligated to make any such exchange or transfer of Bonds during
the fifteen days next preceding an Interest Date on the Bonds, or, in the case of any proposed
redemption of Bonds, then during the fifteen days next preceding the date of the first mailing of
notice of such redemption and continuing until such redemption date.
Section 2.09 Coupon Bonds. The Issuer, at its discretion, may by Supplemental
Resolution authorize the issuance of coupon Bonds, registrable as to principal only or as to both
principal and interest. Such Supplemental Resolution shall provide for the negotiability,
transfer, interchangeability, denominations and form of such Bonds and coupons appertaining
thereto. Coupon Bonds shall only be issued if an opinion of Bond Counsel is received to the
effect that issuance of such coupon Bonds will not adversely affect the exclusion from gross
income of interest earned on such Bonds for federal income tax purposes.
Section 2.10 Book Entry. The Bonds shall be initially issued in the form of a separate
single certificated fully registered Bond for each of the maturities of the Bonds. Upon initial
issuance, the ownership of each such Bond shall be registered in the registration books kept by
the Registrar in the name of Cede & Co., as nominee of The Depository Trust Company
("DTC"). As long as the Bonds shall be registered in the name of Cede & Co., all payments of
principal on the Bonds shall be made by the Paying Agent by check or draft or by bank wire
transfer to Cede & Co., as Holder of the Bonds.
With respect to Bonds registered in the registration books kept by the Registrar in the
name of Cede & Co., as nominee of DTC, the Issuer, the Registrar and the Paying Agent shall
have no responsibility or obligation to any participant in the DTC book -entry program (a
"Participant") or to any indirect participant. Without limiting the immediately preceding
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sentence, the Issuer, the Registrar and the Paying Agent shall have no responsibility or
obligation with respect to (A) the accuracy of the records of DTC, Cede & Co. or any Participant
with respect to any ownership interest in the Bonds, (B) the delivery to any Participant or any
other Person other than a Bondholder, as shown in the registration books kept by the Registrar,
of any notice with respect to the Bonds, including any notice of redemption, or (C) the payment
to any participant or any other Person, other than a Bondholder, as shown in the registration
books kept by the Registrar, of any amount with respect to principal, interest or redemption
premium, if any, of the Bonds. The Issuer, the Registrar and the Paying Agent may treat and
consider the Person in whose name each Bond is registered in the registration books kept by the
Registrar as the Holder and absolute owner of such Bond for the purpose of payment of
principal, interest or redemption premium, if any, with respect to such Bond, for the purpose of
giving notices of redemption and other matters with respect to such Bond, for the purpose of
registering transfers with respect to such Bond, and for all other purposes whatsoever. The
Paying Agent shall pay all principal, interest or redemption premium, if any, of the Bonds only
to or upon the order of the respective Owners, as shown in the registration books kept by the
Registrar, or their respective attorneys duly authorized in writing, as provided herein and all
such payments shall be valid and effective to fully satisfy and discharge the Issuer's obligations
with respect to payment of principal, interest or redemption premium, if any, of the Bonds to
the extent of the sum or sums so paid. No Person other than a Holder, as shown in the
registration books kept by the Registrar, shall receive a redemption premium, if any, pursuant
to the provisions hereof. Upon delivery by DTC to the Issuer of written notice to the effect that
DTC has determined to substitute a new nominee in place of Cede & Co., and subject to the
provisions herein with respect to transfers during the fifteen (15) days next preceding a
payment date or mailing of notice of redemption, the words "Cede & Co." in this Resolution
shall refer to such new nominee of DTC; and upon receipt of such notice, the Issuer shall
promptly deliver a copy of the same to the Registrar and the Paying Agent.
Upon (A) receipt by the Issuer of written notice from DTC (i) to the effect that a
continuation of the requirement that all of the Outstanding Bonds be registered in the
registration books kept by the Registrar in the name of Cede & Co., as nominee of DTC, is not in
the best interest of the beneficial owners of the Bonds or (ii) to the effect that DTC is unable or
unwilling to discharge its responsibilities and no substitute depository willing to undertake the
functions of DTC hereunder can be found which is willing and able to undertake such functions
upon reasonable and customary terms, or (B) determination by the Issuer that such book -entry
only system is burdensome to the Issuer, the Bonds shall no longer be restricted to being
registered in the registration books kept by the Registrar in the name of Cede & Co., as nominee
of DTC, but may be registered in whatever name or names Owners shall designate, in
accordance with the provisions hereof. In such event, the Issuer shall issue and the Registrar
shall authenticate, transfer and exchange Bonds consistent with the terms hereof, in
denominations of $5,000 or any integral multiple thereof to the Owners thereof. The foregoing
notwithstanding, until such time as participation in the book -entry only system is discontinued,
the provisions set forth in the Blanket Letter of Representation entered into by the Issuer dated
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August 22, 1997, by the Issuer and the Registrar and delivered to DTC in order to induce DTC
to act as securities depository for the Bonds shall apply to the payment of principal, interest and
redemption premium, if any, on the Bonds.
Section 2.11 Form of Bonds. The text of the Bonds, except as otherwise provided
pursuant to Section 2.09 hereof, the form of which shall be provided by Supplemental
Resolution of the Issuer, shall be in substantially the following form with such omissions,
insertions and variations as may be necessary and/or desirable and approved by the Mayor
prior to the issuance thereof (which necessity and/or desirability and approval shall be
presumed by the Issuer's delivery of the Bonds to the purchaser or purchasers thereof):
[Remainder of page intentionally left blank]
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Temp. Reso. # 10367 - March 12, 2004
Financial Guaranty Insurance Policy No. _ (the "Policy") with respect to payments due for
principal of and interest on this Bond has been issued by Ambac Assurance Corporation
("Ambac Assurance"). The Policy ahs been delivered to The Bank of New York, New York,
New York, as the Insurance Trustee under said Policy and will be held by such Insurance
Trustee or any successor insurance trustee. The Policy is on file and available for inspection at
the principal office of the Insurance Trustee and a copy thereof may be secured from Ambac
Assurance or the Insurance Trustee. All payments required to be made under the Policy shall
be made in accordance with the provisions thereof. The owner of this Bond acknowledges and
consents to the subrogation rights of Ambac Assurance as more fully set forth in the Policy.
106VCa
UNITED STATES OF AMERICA
STATE OF FLORIDA
COUNTY OF BROWARD
CITY OF TAMARAC, FLORIDA
CAPITAL IMPROVEMENT REVENUE BOND
SERIES 2004
Interest Rate
t%
Registered Holder:
Principal Amount:
Maturity Date Date of Original Issue
2004
CUSIP
KNOW ALL MEN BY THESE PRESENTS, that City of Tamarac, Florida, a body politic
and corporate organized and existing under the laws of the State of Florida (the "Issuer"), for
value received, hereby promises to pay, solely from the Pledged Funds hereinafter described, to
the Registered Holder identified above, or registered assigns as hereinafter provided, on the
Maturity Date identified above, the Principal Amount identified above and interest on such
Principal Amount from the Date of Original Issue identified above or from the most recent
interest payment date to which interest has been paid at the Interest Rate per annum identified
above on April 1 and October 1 of each year commencing 1, 2004 until such
Principal Amount shall have been paid, except as the provisions hereinafter set forth with
respect to redemption prior to maturity may be or become applicable hereto.
The principal of and redemption premium, if applicable, on this Bond is payable upon
presentation and surrender of this Bond at the designated office of
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Temp. Reso. # 10367 - March 12, 2004
as Paying Agent. Interest payable on this Bond on any
interest date will be paid by check or draft of the Paying Agent to the Registered Holder in
whose name this Bond shall be registered at the close of business on the date which shall be the
fifteenth day (whether or not a business day) of the calendar month next preceding such interest
payment date, or, at the option of the Paying Agent, and at the request and expense of such
Registered Holder, by bank wire transfer for the account of such Registered Holder. In the
event the interest payable on this Bond is not punctually paid or duly provided for by the Issuer
on such interest payment date, such defaulted interest will be paid to the Registered Holder in
whose name this Bond shall be registered at the close of business on a special record date for the
payment of such defaulted interest as established by notice to such Registered Holder, not less
than ten days preceding such special record date. All payments of principal of and redemption
premium, if applicable, and interest on this Bond shall be payable in any coin or currency of the
United States of America which at the time of payment is legal tender for the payment of public
and private debts.
This Bond is one of an authorized issue of Bonds in the aggregate principal amount of
$ (the 'Bonds") of like date, tenor and effect, except as to maturity date,
interest rate, denomination and number, issued for the purpose of financing the acquisition and
construction of certain capital improvements to the Issuer's water and wastewater utility system
and stormwater utility system, under the authority of and in full compliance with Chapter 166,
Florida Statutes, the Constitution of the State of Florida, the municipal charter of the Issuer and
other applicable provisions of law (the "Act"), and Resolution No. duly adopted by the
City Commission of the Issuer on 2004, as may be amended and supplemented
from time to time, and as particularly supplemented by Resolution No. duly adopted by
the City Commission of the Issuer on , 2004 (collectively, the "Resolution"), and is
subject to the terms and conditions of this Resolution.
The Bonds and the interest thereon are payable solely from and secured by an
irrevocable pledge of the Pledged Funds. Pledged Funds consist of Non -Ad. Valorem Revenues
(as such term is defined in this Resolution) which are deposited into the Debt Service Fund (as
such term is defined in this Resolution) and certain moneys on deposit in the accounts and
funds established under this Resolution. The Issuer has covenanted and has agreed to
appropriate in its annual budget for each fiscal year sufficient amount of Non -Ad Valorem
Revenues for the payment of principal of and interest on the Bonds in each fiscal year, and to
make certain other payments required by this Resolution, subject to the limitations described in
this Resolution. Reference is made to this Resolution for more complete description of the
security for the Bonds.
IT IS EXPRESSLY AGREED BY THE REGISTERED HOLDER OF THIS BOND THAT
THE FULL FAITH AND CREDIT OF THE ISSUER, THE STATE OF FLORIDA, OR ANY
POLITICAL SUBDIVISION THEREOF, ARE NOT PLEDGED TO THE PAYMENT OF THE
PRINCIPAL, PREMIUM, IF ANY, AND INTEREST ON THIS BOND AND THAT SUCH
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Temp. Reso. # 10367 - March 12, 2004
HOLDER SHALL NEVER HAVE THE RIGHT TO REQUIRE OR COMPEL THE EXERCISE OF
ANY TAXING POWER OF THE ISSUER, THE STATE OF FLORIDA, OR ANY POLITICAL
SUBDIVISION THEREOF, TO THE PAYMENT OF SUCH PRINCIPAL, PREMIUM, IF ANY,
AND INTEREST. THIS BOND AND THE OBLIGATION EVIDENCED HEREBY SHALL NOT
CONSTITUTE A LIEN UPON ANY PROPERTY OF THE ISSUER, BUT SHALL CONSTITUTE
A LIEN ONLY ON, AND SHALL BE PAYABLE SOLELY FROM, THE PLEDGED FUNDS.
This Bond is transferable in accordance with the terms of this Resolution only upon the
books of the Issuer kept for that purpose at the designated corporate trust office of the Registrar
by the Registered Holder hereof in person or by such Holder's attorney duly authorized in
writing, upon the surrender of this Bond together with a written instrument of transfer
satisfactory to the Registrar duly executed by the Registered Holder or such Holder's attorney
duly authorized in writing, and thereupon a new Bond or Bonds in the same aggregate
principal amount shall be issued to the transferee in exchange therefor, and upon the payment
of the charges, if any, therein prescribed. The Bonds are issuable in the form of fully registered.
Bonds in the denominations of $5,000 and integral multiples thereof, not exceeding the
aggregate principal amount of the Bonds maturing on the same date. The Issuer, the Registrar
and any Paying Agent may treat the Registered Holder of this Bond as the absolute owner
hereof for all purposes, whether or not this Bond shall be overdue, and shall not be affected by
any notice to the contrary. The Issuer and the Registrar shall not be obligated to make any
exchange or transfer of the Bonds during the fifteen days next preceding an interest payment
date, or in the case of any proposed redemption of the Bonds, then, during the fifteen days next
preceding the date of the first mailing of notice of such redemption.
[INSERT REDEMPTION PROVISIONS]
Notice of redemption, unless waived, is to be given by the Registrar by mailing an
official redemption notice by registered or certified mail at least 30 days and not more than 60
days prior to the date fixed for redemption to the Registered Owners of the Bonds to be
redeemed at such Owners' addresses shown on the registration books maintained by the
Registrar or at such other addresses as shall be furnished in writing by such Registered Owners
to the Registrar; provided, however, that no defect in any such notice to any Registered Holder
of Bonds to be redeemed nor failure to give such notice to any such Registered Holder nor
failure of any such Registered Holder to receive such notice shall in any manner defeat the
effectiveness of a call for redemption as to all other Registered Owners of. Bonds to be
redeemed. Notice of redemption having been given as aforesaid, the Bonds or portions of
Bonds to be redeemed shall, on the redemption date, become due and payable at the
redemption price therein specified, and from and after such date (unless the Issuer shall default
in the payment of the redemption price), such Bonds or portions of Bonds shall cease to bear
interest.
I�
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Temp. Reso. # 10367 - March 12, 2004
It is hereby certified and recited that all acts, conditions and things required to exist, to
happen and to be performed precedent to and in the issuance of this Bond, exist, have
happened and have been performed, in regular and due form and time as required by the laws
and Constitution of the State of Florida applicable thereto, and that the issuance of the Bonds
does not violate any constitutional or statutory limitations or provisions.
Neither the members of the City Commission of the Issuer nor any person executing this
Bond shall be liable personally hereon or be subject to any personal liability or accountability by
reason of the issuance hereof.
This Bond shall not be valid or become obligatory for any purpose until the Certificate of
Authentication hereon shall have been signed by the Registrar.
IN WITNESS WHEREOF, said City of Tamarac, Florida, has issued this Bond and has by
its City Commission caused the same to be signed by its Mayor and City Manager and to be
attested by the signature of its City Clerk, and a facsimile of the official seal of the Issuer to be
imprinted hereon, all as of the T day of
CITY OF TAMARAC, FLORIDA
(SEAL)
By:
as
ATTESTED:
Marion Swenson, City Clerk
Approved as to form:
Mitchell S. Kraft, City Attorney
Joe Schreiber, Mayor
Jeffrey L. Miller, City Manager
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Temp. Reso. It 10367 - March 12, 2004
CERTIFICATE OF AUTHENTICATION
This Bond is one of the Bonds of the issue described in the within -mentioned Resolution.
DATE OF AUTHENTICATION:
Registrar
ASSIGNMENT
Authorized Officer
FOR VALUE RECEIVED, the undersigned sells, assigns and transfers unto
Insert Social Security or Other
Identifying Number of Assignee
(Name and Address of Assignee)
the within Bond and does hereby irrevocably constitute and appoint as
attorneys to register the transfer of the said Bond on the books kept for registration thereof with.
full power of substitution in the premises.
Dated:
Signature Guaranteed:
NOTICE: Signature(s) must be
guaranteed by a member firm of the
New York Stock Exchange or a
commercial bank or trust company.
NOTICE: The signature to this assignment
must correspond with the name of the
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Temp. Reso. # 10367 - March 12, 2004
Registered Holder as it appears upon the
face of the within Bond in every particular,
without alteration or enlargement or any
change whatever and the Social Security or
other identifying number of such assignee
must be supplied.
The following abbreviations, when used in the inscription on the face of the within
Bond, shall be construed as though they were written out in full according to applicable laws or
regulations:
TEN COM - as tenants in common
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right of survivorship
and not as tenants in common
UNIF TRANS MIN ACT --
Custodian for
under Uniform Transfer to Minors Act of
(Cust.)
(State)
Additional abbreviations may also be used though not in the list above.
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Temp. Reso. # 10367 - March 12, 2004
ARTICLE III
REDEMPTION OF BONDS
Section 3.01 Privilege of Redemption. The Bonds shall be subject to optional and/or
mandatory redemption at the times and in the amounts provided by the Supplemental
Resolution.
Section 3.02 Selection of Bonds to be Redeemed. The Bonds shall be redeemed only in
the principal amount of $5,000 each and integral multiples thereof. The Issuer shall, at least
sixty (60) days prior to the redemption date (unless a shorter time period shall be satisfactory to
the Registrar) notify the Registrar of such redemption date and of the principal amount of
Bonds to be redeemed. For purposes of any redemption of less than all of the Outstanding
Bonds of a single maturity, the particular Bonds or portions of Bonds to be redeemed shall be
selected not more than forty-five (45) days prior to the redemption date by the Registrar from
the Outstanding Bonds of the maturity or maturities designated by the Issuer by such method
as the Registrar shall deem fair and appropriate and which may provide for the selection for
redemption of Bonds or portions of Bonds in principal amounts of $5,000 and integral multiples
thereof.
If less than all of the Outstanding Bonds of a single maturity are to be redeemed, the
Registrar shall promptly notify the Issuer and Paying Agent (if the Registrar is not the Paying
Agent for such Bonds) in writing of the Bonds or portions of Bonds selected for redemption
and, in the case of any Bond selected for partial redemption, the principal amount thereof to be
redeemed.
Section 3.03 Notice of Redemption. Unless waived by any Holder of Bonds to be
redeemed, notice of any redemption made pursuant to this section shall be given by the
Registrar on behalf of the Issuer by mailing a copy of an official redemption notice by registered
or certified mail at least thirty (30) days and not more than sixty (60) days prior to the date fixed
for redemption to each Holder of Bonds to be redeemed at the address of such Holder shown
on the registration books maintained by the Registrar or at such other address as shall be
furnished in writing by such Holder to the Registrar; provided, however, that no defect in any
notice given pursuant to this Section to any Holder of Bonds to be redeemed nor failure to give
such notice shall in any manner defeat the effectiveness of a call for redemption as to all other
Owners of Bonds to be redeemed.
Every official notice of redemption shall be dated and shall state:
(1) the redemption date,
(2) the Redemption Price,
(3) if less than all Outstanding Bonds are to be redeemed, the number (and, in the
case of a partial redemption of any Bond, the principal amount) of each Bond to be redeemed,
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(4) that, on the redemption date, the Redemption Price will become due and payable
upon each such Bond or portion thereof called for redemption, and that interest thereon shall
cease to accrue from and after said date, and
(5) that such Bonds to be redeemed, whether as a whole or in part, are to be
surrendered for payment of the Redemption Price at the designated office of the Registrar.
Prior to any redemption date, the Issuer shall deposit with the Registrar an amount of
money sufficient to pay the Redemption Price of all the Bonds or portions of Bonds which are to
be redeemed on that date.
Section 3.04 Redemption of Portions of Bonds. Any Bond which is to be redeemed
only in part shall be surrendered at any place of payment specified in the notice of redemption
(with due endorsement by, or written instrument of transfer in form satisfactory to, the
Registrar duly executed by, the Holder thereof or such Holder's attorney duly authorized in
writing) and the Issuer shall execute and the Registrar shall authenticate and deliver to the
Holder of such Bond, without service charge, a new Bond or Bonds, of the same interest rate
and maturity, and of any authorized denomination as requested by such Holder, in an
aggregate principal amount equal to and in exchange for the unredeemed portion of the
principal of the Bonds so surrendered.
Section 3.05 Payment of Redeemed Bonds. Notice of redemption having been given
substantially as aforesaid, the Bonds or portions of Bonds so to be redeemed shall, on the
redemption date, become due and payable at the Redemption Price therein specified, and from
and after such date (unless the Issuer shall default in the payment of the Redemption Price)
such Bonds or portions of Bonds shall cease to bear interest. Upon surrender of such Bonds for
redemption in accordance with said notice, such Bonds shall be paid by the Registrar and/or
Paying Agent at the appropriate Redemption Price, plus accrued interest. All Bonds which
have been redeemed shall be canceled by the Registrar and shall not be reissued.
ARTICLE IV
SECURITY, SPECIAL FUNDS AND
APPLICATION THEREOF
Section 4.01 Bonds not to be Indebtedness of Issuer. THE BONDS SHALL NOT BE
OR CONSTITUTE GENERAL OBLIGATIONS OR INDEBTEDNESS OF THE ISSUER AS
"BONDS" WITHIN THE MEANING OF ANY CONSTITUTIONAL OR STATUTORY
PROVISION, BUT SHALL BE SPECIAL OBLIGATIONS OF THE ISSUER, PAYABLE SOLELY
FROM AND SECURED BY A LIEN UPON AND PLEDGE OF THE PLEDGED FUNDS. NO
HOLDER OF ANY BOND SHALL EVER HAVE THE RIGHT TO COMPEL THE EXERCISE OF
ANY AD VALOREM TAXING POWER TO PAY SUCH BOND, FOR THE PAYMENT OF ANY
AMOUNTS PAYABLE HEREUNDER, OR IN ORDER TO MAINTAIN ANY SERVICES OR
PROGRAMS THAT GENERATE NON -AD VALOREM REVENUES, OR BE ENTITLED TO
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PAYMENT OF SUCH BOND FROM ANY MONEYS OF THE ISSUER EXCEPT FROM THE
PLEDGED FUNDS IN THE MANNER PROVIDED HEREIN.
Section 4.02 Bonds Secured by Pledge of Pledged Funds.
(1) The Issuer covenants and agrees to appropriate in its annual budget, by
amendment if necessary, for each Fiscal Year in which the Bonds remain outstanding, sufficient
amounts of Non Ad Valorem Revenues for the payment of principal of and interest on the
Bonds and to make certain other payments required hereunder in each such Fiscal Year. Such
covenant and agreement on the part of the Issuer shall be cumulative and shall continue until
all payments of principal of and interest on the Bonds shall have been budgeted, appropriated
and actually paid. The Issuer agrees that this covenant and agreement shall be deemed to be
entered into for the benefit of the holders of the Bonds and the Insurer and that this obligation
may be enforced in a court of competent jurisdiction. Notwithstanding the foregoing or any
provision of this Resolution to the contrary, the Issuer does not covenant to maintain any
services or programs now maintained or provided by the Issuer, including those programs and
services which generate Non Ad Valorem Revenues. This covenant and agreement shall not be
construed as a limitation on the ability of the Issuer to pledge all or a portion of such Non Ad
Valorem Revenues or to covenant to budget and appropriate Non -Ad Valorem Revenues for
other legally permissible purposes. Nothing herein shall be deemed to pledge ad valorem tax
revenues or to permit or constitute a mortgage or lien upon any assets owned by the Issuer and
no Holder of Bonds or other person may compel the levy of ad valorem taxes on real or
personal property within the boundaries of the Issuer for the payment of the Issuer's
obligations hereunder.
However, this covenant to budget and appropriate in its annual budget for the purposes
and in the manner stated herein has the effect of making available for the payment of the Bonds
the Non Ad Valorem Revenues of the Issuer in the manner provided herein and placing on the
Issuer a positive duty to appropriate and budget, by amendment if necessary, amounts
sufficient to meet its obligations hereunder; subject, however, in all respects to the restrictions of
Section 166.241, Florida Statutes, which make it unlawful for any municipality to expend
moneys not appropriated and in excess of such municipality's current budgeted revenues. The
obligation of the Issuer to make such payments from its Non Ad Valorem Revenues is subject in
all respects to the payment of obligations secured by a pledge of such Non -Ad Valorem
Revenues or a covenant to budget and appropriate Non -Ad Valorem Revenues heretofore or
hereafter entered into (including the payment of debt service on bonds and other debt
instruments), and funding requirements for essential public purposes affecting health, welfare
and safety of the inhabitants of the Issuer; however, such obligation is cumulative and would
carry over from Fiscal Year to Fiscal Year.
Such covenant to budget and appropriate does not create any lien upon or pledge of
such Non -Ad Valorem Revenues until such funds are deposited in the Debt Service Fund
established pursuant to Section 4.04 hereof, nor does it preclude the Issuer from pledging in the
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future or covenanting to budget and appropriate in the future its Non -Ad Valorem Revenues,
nor does it require the Issuer to levy and collect any particular Non -Ad Valorem Revenues, nor
does it give the Holders of the Bonds a prior claim on the Non -Ad Valorem Revenues as
opposed to claims of general creditors of the Issuer. The payment of the debt service of all of
the Bonds issued hereunder shall be secured forthwith equally and ratably by a pledge of and a
lien upon the Pledged Funds, as now or hereafter constituted. The Issuer does hereby
irrevocably pledge such Pledged Funds to the payment of the principal of and interest on the
Bonds issued pursuant to this Resolution, and the Issuer does hereby irrevocably agree to the
deposit of Non -Ad Valorem Revenues into the Debt Service Fund at the times provided of the
sums required to secure to the Holders of the Bonds issued hereunder, and the payment of the
principal of and interest thereon when due. The fledged Funds shall immediately be subject to
the lien of this pledge without any physical delivery thereof or further act, and the lien of this
pledge shall be valid and binding as against all parties having claims of any kind in tort,
contract or otherwise against the Issuer.
(2) Until applied in accordance with this Resolution, the Non Ad Valorem Revenues
deposited by the Issuer in the Debt Service Fund and other amounts on deposit from time to
time in the funds and accounts established pursuant to Section 4.03 hereof, plus any earnings
thereon, shall be pledged to the repayment of the Bonds.
Section 4.03 Construction Fund, The Issuer covenants and agrees to establish a
separate fund to be known as the "City of Tamarac Capital Improvement Revenue Bonds Series
2004 Construction Fund," which shall be used only for payment of the Cost of the Project.
Moneys in the Construction Fund, until applied in payment of any item of the Cost of a Project
in accordance with the provisions hereof, shall be held in trust by the Issuer and shall be subject
to a lien and charge in favor of the Owners of the Bonds and for the further security of such
Owners.
Section 4.04 Funds and Accounts. The Issuer covenants and agrees to establish a
separate fund to be known as the "City of Tamarac Capital Improvement Revenue Bonds Series
2004 Debt Service Fund" (the "Debt Service Fund"). The Issuer shall maintain in the Debt
Service Fund four accounts: the "Interest Account," the "Principal Account," the 'Bond
Amortization Account," and the "Reserve Account." Moneys in the aforementioned funds and
accounts, until applied in accordance with the provisions hereof, shall be subject to a lien and
charge in favor of the Owners and for the further security of the Owners.
Section 4.05 Flow of Funds.
(1) Pursuant to Section 4.02 hereof, Non -Ad Valorem Revenues shall be deposited or
credited at least five (5) business days prior to the applicable due date, in the following manner:
(a) Interest Account. The Issuer shall deposit into or credit to the Interest
Account the sum which, together with the balance in said Account, shall be equal to the interest
on all outstanding Bonds accrued and unpaid and to accrue on such Interest Date. Moneys in
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the Interest Account shall be used to pay interest on the Bonds as and when the same become
due, whether by redemption or otherwise, and for no other purpose.
(b) PrincipalAccount. The Issuer shall deposit into or credit to the Principal
Account the sum which, together with the balance in said Account, shall equal the portion of
the principal on the Outstanding Bonds next due. Moneys in the Principal Account shall be
used to pay the principal of the Bonds as and when the same shall mature, and for no other
purpose.
(C) Bond Amortization Account. The Issuer shall deposit into or credit to the
Bond Amortization Account the sum which, together with the balance in said Account, shall
equal the portion of the Amortization Installments of all Bonds Outstanding next due. Moneys
in the Bond Amortization Account shall be used to purchase or redeem Term Bonds in the
manner herein provided, and for no other purpose. Payments to the Bond Amortization
Account shall be on a parity with payments to the Principal Account.
(d) Reserve Account. The Issuer shall deposit into or credit to the Reserve
Account a sum sufficient to maintain therein an amount equal to the Reserve Account
Requirement. Moneys in the Reserve Account shall be used only for the purpose of the
payment of maturing principal of or interest or Amortization Installments when the other
moneys in the Debt Service Fund are insufficient therefor, and for no other purpose. However,
whenever the moneys on deposit in the Reserve Account exceed the Reserve Account
Requirement, such excess shall be withdrawn and deposited into the Interest Account.
Notwithstanding the foregoing provisions, in lieu of the required cash deposits into the
Reserve Account, the Issuer may, at any time, cause to be deposited into the Reserve Account a
Reserve Account Surety Bond for the benefit of the Bondholders in an amount equal to the
difference between the Reserve Account Requirement and the sums then on deposit in the
Reserve Account, if any, or to remain on deposit in the Reserve Account following the provision
of such Reserve Account Surety Bond. Such Reserve Account Surety Bond shall be payable to
the Paying Agent (upon the giving of notice as required thereunder) on any Interest Date on
which a deficiency exists which cannot be cured by funds in any other fund or account held
pursuant to this Resolution and available for such purpose. Requirements of the issuer proving
such Reserve Account Surety Bond shall be set forth in a Supplemental Resolution.
Whenever the amount in the Reserve Account, together with the other amounts in the
Debt Service Fund, are sufficient to fully pay all Outstanding Bonds in accordance with their
terms (including principal or applicable Redemption Price and interest thereon), the funds on
deposit in the Reserve Account may be transferred to the other accounts of the Debt Service
Fund for the payment of the Bonds.
(2) On the date established for payment of any principal of or Redemption Price, if
applicable, or interest on the Bonds, the Issuer shall withdraw from the appropriate account of
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the Debt Service Fund sufficient moneys to pay such principal or Redemption Price, if
applicable, or interest and deposit such moneys with the Paying Agent for the Bonds to be paid.
Section 4.06 Investments. The Construction Fund and the Debt Service Fund shall be
continuously secured in the manner by which the deposit of public funds are authorized to be
secured by the laws of the State. Moneys on deposit in the Construction Fund and the Debt
Service Fund may be invested and reinvested in Permitted Investments maturing not later than
the date on which the moneys therein will be needed. Any and all income received by the
Issuer from the investment of moneys in each account of the Construction Fund, the Interest
Account, the Principal Account, the Bond Amortization Account, and the Reserve Account (but
only to the extent that the amount therein is less than the Reserve Account Requirement) shall
be retained in such respective Fund or Account unless otherwise required by applicable law. To
the extent that the amount in the Reserve Account is equal to or greater than the Reserve
Account Requirement, any and all income received by the Issuer from the investment of
moneys therein shall be transferred, upon receipt, and deposited into the Interest Account.
Nothing contained in this Resolution shall prevent any Permitted Investments acquired
as investments of or security for funds held under this Resolution from being issued or held in
book -entry form on the books of the Department of the Treasury of the United States.
The value of Permitted Investments held hereunder shall be determined as follows:
(a) For the purpose of determining the amount in any Fund or Account
hereunder, all Permitted Investments credited to such fund or account shall be valued at
fair market value. The Issuer shall determine the fair market value based on accepted
industry standards and from accepted industry providers. Accepted industry providers
shall include but are not limited to pricing services provided by Financial Times
Interactive Data Corporation, Merrill Lynch, Salomon Smith Barney, Bear Stearns or
Lehman Brothers.
(b) As to certificates of deposit and bankers' acceptances: the face amount
thereof, plus accrued interest thereon; and
(c) As to any investment not specified above: the value thereof established
by prior agreement between the Issuer and Ambac Assurance.
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Section 4.07 Separate Accounts. The moneys required to be accounted for in each of
the foregoing funds and accounts established herein may be deposited in a single account, and
funds allocated to the various funds and accounts established herein may be invested in a
common investment pool, provided that adequate accounting records are maintained to reflect
and control the restricted allocation of the moneys on deposit thereuz and such investments for
the various purposes of such funds and accounts as herein provided.
The designation and establishment of the various funds and accounts in and by this
Resolution shall not be construed to require the establishment of any completely independent,
self -balancing funds as such term is commonly defined and used in governmental accounting,
but rather is intended solely to constitute an earmarking of certain revenues for certain
purposes and to establish certain priorities for application of such revenues as herein provided.
ARTICLE V
OTHER OBLIGATIONS AND COVENANTS OF ISSUER
Section 5.01 Special Covenants and Financial Ratios. As a condition precedent to the
issuance of any debt or the incurrence of any other obligations which are secured by and/or
payable solely from Pledgable Non -Ad Valorem Revenues, the Issuer agrees to deliver to the
Insurer a certificate setting forth the calculations of the financial ratios provided below and
certifying that it is in compliance with the following:
(i) the average of the Pledgable Non -Ad Valorem Revenues for the two most
recent Fiscal Years for which audited financial statements of the Issuer are available is equal to
or greater than 2.Ox the projected maximum annual debt service on the proposed debt or
obligations and the other debt and obligations secured by and/or payable solely from all or a
Portion of such Pledgable Non -Ad Valorem Revenue to be outstanding following the issuance
of the proposed debt or obligations; and
(ii) the remainder of (A) the Pledgable Non -Ad Valorem Revenues for the
most recent Fiscal Year for which audited financial statements of the Issuer are available, less
(B) the product of (I) the quotient of such Pledgable Non -Ad Valorem Revenues divided by the
Non -Enterprise Fund Revenues for such Fiscal Year, multiplied by (1I) the Costs of Essential
Services for such Fiscal Year, and less (C) the maximum annual debt service on debt and
obligations secured by an express lien on all or a portion of the Pledgable Non -Ad Valorem
Revenues to be outstanding following the issuance of the proposed debt or obligations is equal
to or greater than 1.1x the Maximum Annual Covenant Debt Service with respect to debt and
obligations to be outstanding following the issuance of the proposed debt or obligations.
[Pledgable Non -Ad Valorem Revenues - ((Pledgable Non -Ad Valorem Revenues - Non -
Enterprise Fund Revenues) x (Costs of Essential Services)) - maximum annual debt service
secured by lien on Pledgable Non -Ad Valorem Revenues ? 1.1 x Maximum Annual Covenant
Debt Service].
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For purposes of the covenants provided in this Section 5.01, "maximum annual
debt service" (including, without limitation, as used in the definition of "Maximum Annual
Covenant Debt Service") shall mean the lesser of the actual maximum annual debt service on
such debt and obligations, or 15% of the original par amount thereof. For the purpose of
calculating maximum annual non -ad valorem debt service on any indebtedness which bears
interest at a variable rate, such indebtedness shall be deemed to bear interest at the greater of (i)
1.25 times the most recently published Bond Buyer Revenue Bond 30 Year Index or (ii) 1.25
times actual average interest rate during the prior Fiscal Year of such Issuer. Notwithstanding
anything herein to the contrary, the provisions of this Section 5.01 may be amended,
supplemented, or waived from time to time only with the prior written consent of the Insurer,
but without the consent of the Bondholders if all the Bonds Outstanding are insured by the
Insurer.
Section 5.02 Books and Records. The Issuer shall keep proper books, records and
accounts of the receipt of the Non -Ad Valorem Revenues in accordance with generally accepted
accounting principles, and any Holder or Owners of Bonds shall have the right at all reasonable
times to inspect such books, records, accounts and data of the Issuer relating thereto. The Issuer
shall, within one hundred eighty (180) days following the close of each Fiscal Year of the Issuer,
cause an audit of such books, records and accounts to be made by an independent firm of
certified public accountants
Copies of each such audit report shall be placed on file with the Issuer and be made
available at reasonable times for inspection by Owners of the Bonds.
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Section 5.03 Annual Audit. The Issuer shall, immediately after the close of each Fiscal
Year, cause the financial statements of the Issuer to be properly audited by a recognized
independent certified public accountant or recognized independent firm of certified public
accountants, and shall require such accountants to complete their report on the annual financial
statements in accordance with applicable law. Such annual financial statements shall contain,
but not be limited to, a balance sheet, a statement of revenues, expenditures and changes in
fund balance, and any other statements as required by law or accounting convention, and a
report by such accountants disclosing any material default on the part of the Issuer of any
covenant or agreement herein which is disclosed by the audit of the financial statements. The
annual financial statements shall be prepared in conformity with generally accepted accounting
principles. A copy of the audited financial statements for each Fiscal Year shall be furnished to
any Holder of a Bond who shall have furnished such Holder's address to the City Manager and
requested in writing that the same be furnished to such Holder. The Issuer shall be permitted to
make a reasonable charge for furnishing such audited financial statements.
Section 5.04 No Impairment. The pledging of the Pledged Funds in the manner
provided herein shall not be subject to repeal, modification or impairment by any subsequent
ordinance, resolution or other proceedings of the City Commission of the Issuer.
Section 5.05 Federal Income Tax Covenants.
(A) It is the intention of the Issuer and all parties under its control that the interest on
the Bonds issued hereunder be and remain excluded from gross income for federal income tax
purposes and to this end the Issuer hereby represents to and covenants with each of the Owners
of the Bonds issued hereunder that it will comply with the requirements applicable to it
contained in Section 103 and Part IV of Subchapter B of Chapter 1 of Subtitle A of the Code to
the extent necessary to preserve the exclusion of interest on the Bonds issued hereunder from
gross income for federal income tax purposes. Specifically, without intending to limit in any
way the generality of the foregoing, the Issuer covenants and agrees:
(])to make or cause to be made all necessary determinations and
calculations of the Rebate Amount and required payments of the Rebate
Amount;
(2)to set aside sufficient moneys in the Rebate Fund or elsewhere, from
Non -Ad Valorem Revenues or other legally available funds of the Issuer, to
timely pay the Rebate Amount to the United States of America;
(3) to pay the Rebate Amount to the United States of America from
Non -Ad Valorem Revenues or from any other legally available funds, at the
times and to the extent required pursuant to Section 148(f) of the Code;
(4) to maintain and retain all records pertaining to the Rebate
Amount with respect to the Bonds issued hereunder and required payments of
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the Rebate Amount for at least six years after the final maturity of the Bonds
issued hereunder or such other period as shall be necessary to comply with the
Code;
(5) to refrain from using proceeds from the Bonds issued hereunder
in a manner that might cause the such Bonds to be classified as private activity
bonds under Section 141(a) of the Code; and
(6) to refrain from taking any action that would cause the Bonds
issued hereunder to become arbitrage bonds under Section 148 of the Code.
The Issuer understands that the foregoing covenants impose continuing obligations on
the Issuer that will exist as long as the requirements of Section 103 and Part IV of Subchapter B
of Chapter 1 of Subtitle A of the Code are applicable to the Bonds.
Notwithstanding any other provision of this Resolution, the obligation of the Issuer to
pay the Rebate Amount to the United States of America and to comply with the other
requirements of this Section 5.05 shall survive the defeasance or payment in full of the Bonds
issued hereunder.
(B) There is hereby created and established a fund to be known as the "City of
Tamarac Capital Improvement Revenue Bonds Series 2004 Rebate Fund" (the "Rebate Fund").
The Issuer shall deposit into the Rebate Fund, from investment earnings on moneys deposited
in the other funds and accounts created hereunder, or from any other legally available funds of
the Issuer, an amount equal to the Rebate Amount for such Rebate Year. The Issuer shall use
such moneys deposited in the Rebate Fund only for the payment of the Rebate Amount to the
United States as required by this Section 5.05. In complying with the foregoing, the Issuer may
rely upon any instructions or opinions from Bond Counsel.
If any amount shall remain in the Rebate Account after payment in full of all Bonds
issued hereunder and after payment in full of the Rebate Amount to the United States in
accordance with the terms hereof, such amounts shall be available to the Issuer for any lawful
purpose.
The Rebate Fund shall be held separate and apart from all other funds and accounts of
the Issuer, shall not be impressed with a lien in favor of the Bondholders and the moneys
therein shall be available for use only as herein provided.
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ARTICLE VI
DEFAULTS AND REMEDIES
Section 6.01 Events of Default. The following events shall each constitute an "Event of
Default:"
(1) Default shall be made in the payment of the principal of, Amortization
Installment, redemption premium or interest on any Bond when due.
(2) There shall occur the dissolution or liquidation of the Issuer, or the filing by the
Issuer of a voluntary petition in bankruptcy, or the commission by the Issuer of any act of
bankruptcy, or adjudication of the Issuer as a bankrupt, or assignment by the Issuer for the
benefit of its creditors, or appointment of a receiver for the Issuer, or the entry by the Issuer into
an agreement of composition with its creditors, or the approval by a court of competent
jurisdiction of a petition applicable to the Issuer in any proceeding for its reorganization
instituted under the provisions of the Federal Bankruptcy Act, as amended, or under any
similar act in any jurisdiction which may now be in effect or hereafter enacted.
(3) The Issuer shall default in the due and punctual performance of any other of the
covenants, conditions, agreements and provisions contained in the Bonds or in this Resolution
on the part of the Issuer to be performed, and such default shall continue for a period of thirty
(30) days after written notice of such default shall have been received from the Insurer or the
Owners of not less than twenty-five percent (25%,) of the aggregate principal amount of Bonds
Outstanding or the Insurer of such amount of Bonds. Notwithstanding the foregoing, the Issuer
shall not be deemed in default hereunder if such default can be cured within a reasonable
period of time and if the Issuer in good faith institutes curative action and diligently pursues
such action until the default has been corrected.
Section 6.02 Remedies. Any Holder of Bonds issued under the provisions of this
Resolution or any trustee or receiver acting for such Bondholders may either at law or in equity,
by suit, action, mandamus or other proceedings in any court of competent jurisdiction, protect
and enforce any and all rights under the laws of the State, or granted and contained in this
Resolution, and may enforce and compel the performance of all duties required by this
Resolution or by any applicable statutes to be performed by the Issuer or by any officer thereof.
The Holder or Owners of Bonds in an aggregate principal amount of not less than
twenty-five percent (25%) of the Bonds then Outstanding may by a duly executed certificate in
writing appoint a trustee for Owners of Bonds issued pursuant to this Resolution with authority
to represent such Bondholders in any legal proceedings for the enforcement and protection of
the rights of such Bondholders and such certificate shall be executed by such Bondholders or
their duly authorized attorneys or representatives, and shall be filed in the office of the City
Manager. Notice of such appointment, together with evidence of the requisite signatures of the
Owners of not less than twenty-five percent (259%) in aggregate principal amount of Bonds
Outstanding and the trust instrument under which the trustee shall have agreed to serve shall
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be filed with the Issuer and the trustee and notice of appointment shall be given to all Owners
of Bonds in the same manner as notices of redemption are given hereunder. After the
appointment of the first trust hereunder, no further trustees may be appointed; however, the
Owners of a majority in aggregate principal amount of all the Bonds then Outstanding may
remove the trustee initially appointed and appoint a successor and subsequent successors at
any time.
Section 6.03 Directions to Trustee as to Remedial Proceedings. The Owners of a
majority in principal amount of the Bonds then Outstanding or, if the Bonds are insured, the
Insurer, shall have the right, by an instrument or concurrent instruments in writing executed
and delivered to the trustee, to direct the method and place of conducting all remedial
proceedings to be taken by the trustee hereunder, provided that such direction shall not be
otherwise than in accordance with law or the provisions hereof, and that the trustee shall have
the right to decline to follow any such direction which in the opinion of the trustee would be
unjustly prejudicial to Owners of Bonds not parties to such direction.
Section 6.04 Remedies Cumulative. No remedy herein conferred upon or reserved to
the Bondholders is intended to be exclusive of any other remedy or remedies, and each and
every such remedy shall be cumulative, and shall be in addition to every other remedy given
hereunder or now or hereafter existing at law or in equity or by statute.
Section 6.05 Waiver of Default. No delay or omission of any Bondholder to exercise
any right or power accruing upon any default shall impair any such right or power or shall be
construed to be a waiver of any such default, or an acquiescence therein; and every power and
remedy given by Section 6.02 of this Resolution to the Bondholders may be exercised from time
to time, and as often as may be deemed expedient.
Section 6.06 Application of Moneys After Default. If an Event of Default shall happen
and shall not have been remedied, the Issuer or a trustee or receiver appointed for the purpose
shall apply all Pledged Funds as follows and in the following order:
(1) To the payment of the reasonable and proper charges, expenses and liabilities of
the trustee or receiver, Registrar and Paying Agent hereunder; and
(2) To the payment of the interest and principal or Redemption Price, if applicable,
then due on the Bonds, as follows:
(A) Unless the principal of all the Bonds shall have become due and payable,
all such moneys shall be applied:
FIRST: to the payment to the Persons entitled thereto of all installments of
interest then due, in the order of the maturity of such installments, and, if the amount
available shall not be sufficient to pay in full any particular installment, then to the
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payment ratably, according to the amounts due on such installment, to the Persons
entitled thereto, without any discrimination or preference;
SECOND: to the payment to the Persons entitled thereto of the unpaid principal
of any of the Bonds which shall have become due at maturity or upon mandatory
redemption prior to maturity (other than Bonds called for redemption for the payment
of which moneys are held pursuant to the provisions of Section 8.01 of this Resolution),
in the order of their due dates, with interest upon such Bonds from the respective dates
upon which they became due, and, if the amount available shall not be sufficient to pay
in full Bonds due on any particular date, together with such interest, then to the
payment first of such interest, ratably according to the amount of such interest due on
such date, and then to the payment of such principal, ratably according to the amount of
such principal due on such date, to the Persons entitled thereto without any
discrimination or preference; and
THIRD: to the payment of the Redemption Price of any Bonds called for optional
redemption pursuant to the provisions of this Resolution.
(B) If the principal of all the Bonds shall have become due and payable, all
such moneys shall be applied to the payment of the principal and interest then due and
unpaid upon the Bonds, with interest thereon as aforesaid, without preference or
priority of principal over interest or of interest over principal, or of any installment of
interest over any other installment of interest, or of any Bond over any other Bond,
ratably, according to the amounts due respectively for principal and interest, to the
Persons entitled thereto without any discrimination or preference.
ARTICLE VII
SUPPLEMENTAL RESOLUTIONS
Section 7.01 Supplemental Resolutions without Bondholders' Consent. The Issuer,
from time to time and at any time, may adopt such Supplemental Resolutions without the
consent of the Bondholders (which Supplemental Resolutions shall thereafter form a part
hereof) for any of the following purposes:
(1) To cure any ambiguity or formal defect or omission or to correct any inconsistent
provisions in this Resolution or to clarify any matters or questions arising hereunder.
(2) To grant to or confer upon the Bondholders any additional rights, remedies,
Powers, authority or security that may lawfully be granted to or conferred upon the
Bondholders.
(3) To add to the conditions, limitations and restrictions on the issuance of Bonds
under the provisions of this Resolution other conditions, limitations and restrictions thereafter
to be observed.
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(4) To add to the covenants and agreements of the Issuer in this Resolution other
covenants and agreements thereafter to be observed by the Issuer or to surrender any right or
power herein reserved to or conferred upon the Issuer.
(5) To specify and determine the matters and things referred to in Sections 2.01, 2.02
or 2.09 hereof, and also any other matters and things relative to such Bonds which are not
contrary to or inconsistent with this Resolution as theretofore in effect, or to amend, modify or
rescind any such authorization, specification or determination at any time prior to the first
delivery of such Bonds.
(6) To change or modify the description of the Project.
(7) To make any other change that, in the opinion of the Issuer, would not materially
adversely affect the security for the Bonds.
If the Insurer of the Bonds is not then in default in the performance of any of its
obligations under its Insurance Policy, it shall receive notice of all Supplemental Resolutions
adopted pursuant to this Section 7.01.
Section 7.02 Supplemental Resolutions with Bondholders' Consent. Subject to the
terms and provisions contained in this Section 7.02 and Section 7.01 hereof, the Holder or
Owners of not less than a majority in aggregate principal amount of the Bonds then
Outstanding shall have the right, from time to time, anything contained in this Resolution to the
contrary notwithstanding, to consent to and approve the adoption of such Supplemental
Resolution or resolutions hereto as shall be deemed necessary or desirable by the Issuer for the
purpose of supplementing, modifying, altering, amending, adding to or rescinding, in any
particular, any of the terms or provisions contained in this Resolution. Any Supplemental
Resolution which is adopted in accordance with the provisions of this Section 7.02 shall also
require the written consent of the Insurer of any Bonds which are Outstanding at the time such
Supplemental Resolution shall take effect. No Supplemental Resolution may be approved or
adopted which shall permit or require (A) an extension of the maturity of the principal of or the
payment of the interest on any Bond issued hereunder, (B) reduction in the principal amount of
any Bond or the Redemption Price or the rate of interest thereon, (C) the creation of a lien upon
or a pledge of other than the lien and pledge created by this Resolution which adversely affects
any Bondholders, (D) a preference or priority of any Bond or Bonds over any other Bond or
Bonds, or (E) a reduction in the aggregate principal amount of the Bonds required for consent to
such Supplemental Resolution, unless such Supplemental Resolution has the approval of 1009%
of the Bondholders and any Insurer of the Bonds. Nothing herein contained, however, shall be
construed as making necessary the approval by Bondholders of the adoption of any
Supplemental Resolution as authorized in Section 7.01 hereof.
If, at any time the Issuer shall determine that it is necessary or desirable to adopt any
Supplemental Resolution pursuant to this Section 7.02, the City Clerk shall cause the Registrar
to give notice of the proposed adoption of such Supplemental Resolution and the form of
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consent to such adoption to be mailed, postage prepaid, to all Bondholders at their addresses as
they appear on the registration books. Such notice shall briefly set forth the nature of the
proposed Supplemental Resolution and shall state that copies thereof are on file at the offices of
the City Clerk and the Registrar for inspection by all Bondholders. The Issuer shall not,
however, be subject to any liability to any Bondholder by reason of its failure to cause the notice
required by this Section 7.02 to be mailed and any such failure shall not affect the validity of
such Supplemental Resolution when consented to and approved as provided in this Section
7.02.
Whenever the Issuer shall deliver to the City Clerk an instrument or instruments in
writing purporting to be executed by the Owners or Insurers, as the case may be, of not less
than a majority in aggregate principal amount of the Bonds then Outstanding, which
instrument or instruments shall refer to the proposed Supplemental Resolution described in
such notice and shall specifically consent to and approve the adoption thereof in substantially
the form of the copy thereof referred to in such notice, thereupon, but not otherwise, the Issuer
may adopt such Supplemental Resolution in substantially such form, without liability or
responsibility to any Holder of any Bond, whether or not such Holder shall have consented
thereto.
If the Owners of not less than a majority in aggregate principal amount of the Bonds
Outstanding at the time of the adoption of such Supplemental Resolution shall have consented
to and approved the adoption thereof as herein provided, no Holder of any Bond shall have any
right to object to the adoption of such Supplemental Resolution, or to object to any of the terms
and provisions contained therein or the operation thereof, or in any manner to question the
propriety of the adoption thereof, or to enjoin or restrain the Issuer from adopting the same or
from taking any action pursuant to the provisions thereof.
Upon the adoption of any Supplemental Resolution pursuant to the provisions of this
Section 7.02, this Resolution shall be deemed to be modified and amended in accordance
therewith, and the respective rights, duties and obligations under this Resolution of'the Issuer
and all Owners of Bonds then Outstanding shall thereafter be determined, exercised and
enforced in all respects under the provisions of this Resolution as so modified and amended.
Section 7.03 Supplemental Resolutions with Insurer's Consent in lieu of Bondholders'
Consent. Notwithstanding any provisions of Section 7.02 above to the contrary, if the Insurer of
the Bonds is not then in default in the performance of any of its obligations under its Financial
Guaranty Insurance Policy, the approvals, consents and notifications required by Section 7.02
above to be given by or to the Owners of the Bonds, as the case may be, may be given solely by
or to the Insurer, as the case may be, and the instrument contemplated by Section 7.02 above
shall be executed solely by the Insurer, and the Owners of the Bonds subject to such Financial
Guaranty Insurance Policy shall have no right to receive such notification or give such
approvals and consents or to execute such certificate except that the adoption of Supplemental
Resolutions that would have any of the effects described in (A) through (E) in Section 7.02
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above shall require the approval and consent of all Owners of Bonds then Outstanding and the
Insurer.
ARTICLE VIII
MISCELLANEOUS
Section 8.01 Defeasance. If the Issuer shall pay or cause to be paid, or there shall
otherwise be paid to the Owners of all Bonds, the principal or Redemption Price, if applicable,
and interest due or to become due thereon, at the times and in the manner stipulated therein
and in this Resolution, then the pledge of the Pledged Funds, and all covenants, agreements and
other obligations of the Issuer to the Bondholders, shall thereupon cease, terminate and become
void and be discharged and satisfied. In such event, the Paying Agents shall pay over or
deliver to the Issuer all money or securities held by them pursuant to this Resolution which are
not required for the payment or redemption of Bonds not theretofore surrendered for such
payment or redemption.
Any Bonds or interest installments appertaining thereto, whether at or prior to the
maturity or redemption date of such Bonds, shall be deemed to have been paid within the
meaning of this Section 8.01 if (A) in case any such Bonds are to be redeemed prior to the
maturity thereof, there shall have been taken all action necessary to call such Bonds for
redemption and notice of such redemption shall have been duly given or provision shall have
been made for the giving of such notice, and (B) there shall have been deposited in irrevocable
trust with a banking institution or trust company by or on behalf of the Issuer either moneys in
an amount which shall be sufficient, or Federal Securities the principal of and the interest on
which when due will provide moneys which, together with the moneys, if any, deposited with
such bank or trust company at the same time shall be sufficient, to pay the principal of or
Redemption Price, if applicable, and interest due and to become due on said Bonds on and prior
to the redemption date or maturity date thereof, as the case may be. Except as hereafter
provided, neither the Federal Securities nor any moneys so deposited with such bank or trust
company nor any moneys received by such bank or trust company on account of principal of or
Redemption Price, if applicable, or interest on said Federal Securities shall be withdrawn or
used for any purpose other than, and all such moneys shall be held in trust for and be .7pplied
to, the payment, when due, of the principal of or Redemption Price, if applicable, of the Bonds
for the payment or redemption of which they were deposited and the interest accruing thereon
to the date of maturity or redemption; provided, however, the Issuer may substitute new
Federal Securities and moneys for the deposited Federal Securities and moneys if the new
Federal Securities and moneys are sufficient to pay the principal of or Redemption Price, if
applicable, and interest on the refunded Bonds.
In the event the Bonds for which moneys are to be deposited for the payment thereof in
accordance with this Section 8.01 are not by their terms subject to redemption within the next
succeeding sixty (60) days, the Issuer shall cause the Registrar to mail a notice to the Owners of
such Bonds that the deposit required by this Section 8.01 of moneys or Federal Securities has
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been made and said Bonds are deemed to be paid in accordance with the provisions of this
Section 8.01 and stating such maturity or redemption date upon which moneys are to be
available for the payment of the principal of or Redemption Price, if applicable, and interest on
said Bonds.
Nothing herein shall be deemed to require the Issuer to call any of the Outstanding
Bonds for redemption prior to maturity pursuant to any applicable optional redemption
provisions, or to impair the discretion of the Issuer in determining whether to exercise any such
option for early redemption.
Notwithstanding anything herein to the contrary, in the event that the principal and or
interest due on the Bonds shall be paid by the Insurer pursuant to the Financial Guaranty
Insurance Policy, the Bonds shall remain outstanding for all purposes, not be defeased or
otherwise satisfied and not be considered paid by the Issuer and the pledge of the Pledged
Funds and all covenants, agreements and other obligations of the Issuer to the registered
owners, shall continue to exist and shall run to the benefit of The Insurer, and The Insurer shall
be subrogated to the rights of such registered owners.
Section 8.02 Insurer Provisions. So long as (i) any Bonds are outstanding and (ii) the
Financial Guaranty Insurance Policy relating to the Bonds or the Reserve Account Surety Bond
is in full force and effect and the Insurer has not defaulted in its payment obligations
thereunder, the Issuer agrees to comply with the following provisions:
(a) Any provision of this Resolution expressly recognizing or granting rights
in or to the Insurer may not be amended in any manner which affects the rights of the Insurer
thereunder without the prior written consent of the Insurer. The Issuer acknowledges that the
Insurer reserves the right to charge the Issuer a fee for any consent or amendment to this
Resolution while the Financial Guaranty Insurance Policy or the Reserve Account Surety Bond
is outstanding.
(b) Unless otherwise provided in this section, the consent of the Insurer shall
be required in addition to any required consent of the holders of the Bonds for the following
purposes: (i) execution and delivery of any supplement or any amendment, change or
modification to this Resolution that affects the Bonds; (ii) removal of the Paying Agent and
selection and appointment of any successor paying agent; and (iii) initiation or approval of any
action not described in (i) or (ii) which requires consent of the holders of the Bonds.
(c) Any reorganization or liquidation plan with respect to the Issuer must be
acceptable to the Insurer. In the event of any reorganization or liquidation, the Insurer shall
have the right to vote on behalf of all holders of the Bonds absent a default by the Insurer under
the Financial Guaranty Insurance Policy.
(d) Anything in this Resolution to the contrary notwithstanding, upon the
occurrence and continuation of an Event of Default hereunder, the Bond Insurer shall be
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entitled to control and direct all rights and remedies granted to the holders of the bonds or to a
trustee appointed by the holders of the Bonds.
(e) Notices to be Given to the Insurer.
(i) The Issuer shall furnish to the Insurer to the attention of the Surveillance
Department, unless otherwise indicated:
(A) as soon as practicable after the filing thereof, a copy of any
financial statement of the Issuer and a copy of any audit and annual report of the Issuer;
(B) a copy of any notice to be given to the registered Owners of the
Bonds, including, without limitation, notice of any redemption of or defeasance of
Bonds, and any certificate rendered pursuant to this Resolution or hereunder, relating to
the security for the Bonds; and
(C) such additional information it may reasonably request.
(ii) The Issuer shall notify the Insurer of any failure of the Issuer to provide
relevant notices or certificates that are required to be given hereunder.
(iii) The Issuer will permit the Insurer to discuss with appropriate officers of
the Issuer the affairs, finances and accounts of the Issuer or any information the Insurer may
reasonably request regarding the security for the Bonds. The Issuer will permit the Insurer to
have access to the Project and have access to and to make copies of all books and records
relating to the Issuer at any reasonable time.
(iv) The Insurer shall have the right to direct an accounting at the Issuer's
expense, and the Issuer's failure to comply with such direction within thirty (30) days after
receipt of written notice of the direction from the Insurer shall be deemed a default under this
Resolution; provided, however, that if compliance cannot occur within such period, then such
period will be extended as long as compliance is begun within such period and diligently
pursued, but only if such extension would not materially adversely affect the interests of any
registered owner of the Bonds.
(v) Notwithstanding any other provision of this Resolution, the Paying
Agent shall immediately notify the Insurer if at any time there are insufficient moneys to make
any payments of principal and/or interest as required and the Issuer shall immediately notify
the Insurer upon the occurrence of any Event of Default hereunder.
(f) Paying Agent Provisions.
(i) The Paying Agent may be removed at any time, at the request of Insurer, for
any breach of the trust set forth herein.
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(ii) The Insurer shall receive prior written notice of any Paying Agent
resignation.
(iii) Every successor Paying Agent appointed pursuant to this section shall be a
trust company or bank in good standing located in or incorporated under the laws of the State,
duly authorized to exercise trust powers and subject to examination by federal or state authority,
having a reported capital and surplus of not less than $75,000,000 and acceptable to the Insurer.
Any successor Paying Agent, if applicable, shall not be appointed unless the Insurer approves such
successor in writing.
(iv) Notwithstanding any other provision of this Resolution, in determining
whether the rights of the Bond holders will be adversely affected by any action taken pursuant to
the terms and provisions of this Resolution or hereof, the Paying Agent and the Issuer shall
consider the effect on the Bond holders as if there was no Financial Guaranty Insurance Policy.
(v) Notwithstanding any other provision of this Resolution, no removal,
resignation or termination of the Paying Agent shall take effect until a successor, acceptable to the
Insurer, shall be appointed.
Section 8.03 Claims Upon the Financial Guaranty Insurance Policy and Reserve
Account Surety Bond.
As long as the Financial Guaranty Insurance Policy is in full force and effect, the Issuer
and the Paying Agent shall comply with the following:
(a) At least one (1) day prior to any Interest Date the Paying Agent will
determine whether there will be sufficient funds deposited to pay the principal of or interest on
the Bonds on such Interest Date. If the Paying Agent determines that there will be insufficient
funds in such funds or accounts, it shall so notify the Insurer. Such notice shall specify the
amount of the anticipated deficiency, the Bonds to which such deficiency is applicable and
whether such Bonds will be deficient as to principal or interest, or both. If the Paying Agent has
not so notified the Insurer at least one (1) day prior to an Interest Date, the Insurer will make
payments of principal or interest due on the Bonds on or before the first day next following the
date on which the Insurer shall have received notice of nonpayment from the Paying Agent or
the Issuer.
(b) The Paying Agent shall, after giving notice to the Insurer as provided in
(a) above, make available to the Insurer and, at the Insurer's direction, to The Bank of New
York, in New York, New York, as insurance trustee for the Insurer or any successor insurance
trustee (the "Insurance Trustee"), the registration books of the Issuer maintained by the Paying
Agent, and all records relating to the funds and accounts maintained under this Resolution.
(c) The Paying Agent shall provide the Insurer and the Insurance Trustee
with a list of registered owners of the Bonds entitled to receive principal or interest payments
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from the Insurer under the terms of the Financial Guaranty Insurance Policy, and shall make
arrangements with the Insurance Trustee: (i) to mail checks or drafts to the registered owners of
the Bonds entitled to receive full or partial interest payments from the Insurer; and (ii) to pay
principal upon the Bonds surrendered to the Insurance Trustee by the registered owners of such
Bonds entitled to receive full or partial principal payments from the Insurer.
(d) The Paying Agent shall, at the time it provides notice to the Insurer
pursuant to (a) above, notify registered owners of the Bonds entitled to receive the payment of
principal or interest thereon from the Insurer: (i) as to the fact of such entitlement; (ii) that the
Insurer will remit to them all or part of the interest payments next coming due upon proof of
the entitlement of the holder of the Bonds to interest payments, and delivery to the Insurance
Trustee, in form satisfactory to the Insurance Trustee, of an appropriate assignment of the
registered owner's right to payment; (iii) that should they be entitled to receive full payment of
principal from the Insurer, they must surrender their Bonds (along with an appropriate
instrument of assignment in form satisfactory to the Insurance Trustee to permit ownership of
such Bonds to be registered in the name of the Insurer) for payment to the Insurance Trustee,
and not the Paying Agent; and (iv) that should they be entitled to receive partial payment of
principal from the Insurer, they must surrender their Bonds for payment thereon first to the
Paying Agent who shall note on such Bonds the principal paid by the Paying Agent and then,
along with the appropriate instrument of assignment in form satisfactory to the Insurance
Trustee, to the Insurance Trustee, which will then pay the unpaid portion of principal.
(e) In the event that the Paying Agent has notice that any payment of
principal of or interest on the Bonds which has become due for payment and which is made to a
holder of Bonds by or on behalf of the Issuer has been deemed a preferential transfer and
therefore recovered from its registered owner pursuant to the United States Bankruptcy Code
by a Paying Agent in bankruptcy in accordance with the final, nonappealable order of a court
having competent jurisdiction, the Paying Agent, shall, at the time the Insurer is notified
pursuant to (a) above, notify all registered owners that in the event that any registered owner's
payment is so recovered, such registered owner will be entitled to payment from the Insurer to
the extent of such recovery if sufficient funds are not otherwise available, and the Paying Agent
shall furnish to the Insurer its records evidencing the payments of principal of and interest of
the Bonds which have been made by the Paying Agent and the dates on which such payments
were made.
(f) In addition to those rights granted the Insurer under this Resolution, the
Insurer shall, to the extent it makes payment of principal of or interest of the Bonds, become
subrogated to the rights of the recipients of such payments in accordance with the terms of the
Financial Guaranty Insurance Policy, and to evidence such subrogation: (i) in the case of
subrogation as to claims for past due interest, the Paying Agent shall note the Insurer's rights as
subrogee on the registration books of the Issuer maintained by the Paying Agent upon receipt
from the Insurer of proof of the payment of interest thereon to the registered owners of the
Bonds; and (ii) in the case of subrogation as to claims for past due principal, the Paying Agent
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shall note the Insurer's rights as subrogee on the registration books of the Issuer maintained by
the Paying Agent upon surrender of the Bonds by the registered owners thereof together with
proof of the payment of principal thereof.
As long as the Reserve Account Surety Bond shall be in full force and effect, the Issuer
and Paying Agent agree to comply with the following provisions:
(a) In the event and to the extent that moneys on deposit in the Reserve
Account in excess of the amount of the Reserve Account Surety Bond, are insufficient to pay the
amount of principal and interest coming due, then upon the later of: (i) one (1) day after receipt
by the General Counsel of the Insurer of a demand for payment in the form attached to the
Reserve Account Surety Bond as Attachment 1 (the "Demand for Payment"), duly executed by
the Paying Agent certifying that payment due under this Resolution has not been made to the
Paying Agent; or (ii) the payment date of the Bonds as specified in the Demand for Payment
presented by the Paying Agent to the General Counsel of the Insurer, the Insurer will make a
deposit of funds in an account with the Paying Agent or its successor, in New York, New York,
sufficient for the payment to the Paying Agent, of amounts which are then due to the Paying
Agent under this Resolution (as specified in the Demand for Payment) up to but not in excess of
the Reserve Account Surety Bond Coverage, as defined in the Reserve Account Surety Bond;
provided, however, that in the event that the amount on deposit in, or credited to, the Reserve
Account, in addition to the amount available under the Reserve Account Surety Bond, includes
amounts available under a letter of credit, insurance policy, or other such funding instrument
(the "Additional Funding Instrument"), draws on the Reserve Account Surety Bond shall be
made on a pro rata basis to fund the insufficiency.
(b) The Paying Agent, shall, after submitting to the Insurer the Demand for
Payment as provided in (a) above, make available to the Insurer all records relating to the funds
and accounts maintained under this Resolution.
(c) The Paying Agent shall, upon receipt of moneys received from the draw
on the Reserve Account Surety Bond, as specified in the Demand for Payment, credit the
Reserve Account to the extent of moneys received pursuant to such Demand for Payment.
(d) The Reserve Account shall be replenished in the following priority: (i)
principal and interest on the Reserve Account Surety Bond shall be paid from first available
Pledged Funds; (ii) after all such amounts are paid in full, amounts necessary to fund the
Reserve Account to the required level, after taking into account the amounts available under the
Reserve Account Surety Bond shall be deposited from next available Pledged Funds.
Section 8.04 Preliminary Official Statement. The preparation and distribution of a
Preliminary Official Statement relating to the Bonds is hereby approved and authorized, as is
the use thereof by the underwriter or underwriters in connection with the sale of the Bonds.
The City Manager of the Issuer is hereby authorized to execute and deliver a certificate of the
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Issuer which deems such Preliminary Official Statement "final" within the contemplation of
Rule 15c2-12 of the Securities and Exchange Commission.
Section 8.05 Sale of Bonds. The Bonds shall be issued and sold at public or private sale
at one time or in installments from time to time and at such price or prices as shall be consistent
with the provisions of the Act, the requirements of this Resolution and other applicable
provisions of law and as shall be approved by Supplemental Resolution of the Issuer.
Section 8.06 General Authority. The members of the City Commission of the Issuer,
the City Manager, the City Attorney, the Director of Finance and all other of the Issuer's officers,
attorneys and other agents and employees are hereby authorized to perform all acts and things
required of them by this Resolution or any Supplemental Resolution or desirable or consistent
with the requirements hereof for the full, punctual and complete performance of all of the
terms, covenants and agreements contained in the Bonds, this Resolution, and any
Supplemental Resolution, and they are hereby authorized to execute and deliver all documents
which shall be required by Bond Counsel or the initial purchasers of the Bonds to effectuate the
sale of the Bonds to said initial purchasers.
Section 8.07 Interested Parties. (i) To the extent that this Resolution confers upon or
gives or grants to the Insurer any right, remedy or claim under or by reason of this Resolution, the
Insurer is explicitly recognized as being a third -party beneficiary under this Resolution and may
enforce any such right, remedy or claim conferred, given or granted under this Resolution.
(ii) Nothing in this Resolution expressed or implied is intended or shall be
construed to confer upon, or to give to, any person or entity, other than the Issuer, the Insurer, the
Paying Agent, and the registered owners of the Bonds, any right, remedy or claim under or by
reason of this Resolution or any covenant, condition or stipulation thereof, and all covenants,
stipulations, promises and agreements in this Resolution contained by and on behalf of the Issuer
shall be for the sole and exclusive benefit of the Issuer, the Insurer, the Paying Agent, and the
registered owners of the Bonds.
Section 8.08 No Personal Liability Neither the members of the City Commission of
the Issuer, the City Manager, nor any person executing the Bonds shall be personally liable
therefor or be subject to any personal liability or accountability by reason of the issuance
thereof.
Section 8.09 Severability of Invalid Provisions. If any one or more of the covenants,
agreements or provisions of this Resolution shall be held contrary to any express provision of
law or contrary to the policy of express law, though not expressly prohibited, or against public
policy, or shall for any reason whatsoever be held invalid, then such covenants, agreements or
provisions shall be null and void and shall be deemed separable from the remaining covenants,
agreements and provisions of this Resolution and shall in no way affect the validity of any of
the other covenants, agreements or provisions hereof or of the Bonds issued hereunder.
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Section 8.1.0 Rel2eal of Inconsistent Resolutions. All .resolutions or parts thereof in
conflict herewith are hereby superseded and repealed to the extent of such conflict.
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Section 8.11 Effective Date. This Resolution shall take effect immediately upon its
adoption.
PASSED AND ADOPTED the 241" day of March, 2004
ATTEST:
Marion Swenson, 6ity Clerk
I HEREBY CERTIFY that I have
approved this Resolution as to form.
Mitchell S. Kraft, City Attor ey
CITY OF TAMARAC, FLORIDA
J Schreiber, Mayor
RECORD OF COMMISSION VOTE:
MAYOR SCHREIBER
DIST 1: COMM. PORTNER
DIST 2: COMM. FLANSBAUM-TALAB
DIST 3: V/M SULTANOF
DIST 4: COMM. ROBERTS
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Temp. Reso. # 10367 - March 12, 2004
EXHIBIT A
THE PROJECT
The Project will consist of the acquisition, construction and equipping of capital improvements
to the Issuer's water and wastewater utility system and stormwater utility system and related
capital expenditures, including, but not limited to, disinfection facilities and a two million
gallon storage tank and pump station and other capital improvements with respect to the
Issuer's water and wastewater utility system and C-14 stormwater pump stations, capital
improvements provided in the Issuer's stormwater master plan, Boulevards drainage
improvements, Woodlands subdivision internal roads drainage study, North West 571h Street
drainage construction and other capital improvements with respect to the Issuer's stormwater
utility system.
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